Not much upside in random tests (Editor’s notes)

If police don’t have the power to conduct random alcohol tests, why should employers?

Some things sound like a good idea on paper but, in practice, don’t quite pan out. Such is the case with random drug testing of employees.

In theory, it sounds like a pretty good idea. Imperial Oil certainly thought it was worth pursuing, as described by Stuart Rudner on page 5 of this issue. It wanted to conduct random drug tests of employees at its facility in Nanticoke, Ont. It thought a new test, which could measure whether or not a worker was impaired by marijuana, was legitimate. After all, it appeared this new test circumvented concerns raised in the 2001 Entrop decision that set the blueprint for random drug testing in Canada — mainly, that the old test couldn’t show actual impairment, just whether or not the worker had residue in his system. The new test can determine whether or not the employee was under the influence of drugs while at work.

But there’s a catch. The tests are sent to Houston and the results aren’t known for a couple of days. So a worker who was randomly selected to be tested, and in fact was high, would be sent back to work until the test results came back from Texas.

The union grieved the policy. And an arbitrator ruled against the use of the tests stating, essentially, that random drug tests — and random alcohol tests — have no place in Canadian workplaces.

Police officers don’t have the power to give anybody they want a breathalyser. They must have reasonable suspicion. If police don’t have the power to conduct random alcohol tests, why should employers?

The drug test Imperial Oil was using involved taking a buccal swab of the inside of the cheek. This means, effectively, the employer is collecting a worker’s DNA to conduct a drug test. In a criminal investigation, a court order is required to collect DNA. Why should an employer have the extraordinary power to randomly test any employee it wants? The fact an employer has a worker’s DNA also raises other troubling questions. In theory, as technology improves, employers could analyze the DNA to see if the worker is predisposed to having cancer or other types of diseases that could prove costly to the employer’s benefits plan. It could then decide to terminate him. That’s an Orwellian scenario, but it is possible.

All this is not to say that drug and alcohol testing at work is out of the question. But employers need to have a reason to subject workers to this extreme type of scrutiny. In short, employers need just cause to suspect the worker is under the influence of drugs or alcohol before administering a test.

Imperial Oil’s heart was in the right place. After all, it has an absolute responsibility to provide a safe working environment. But random drug and alcohol tests simply cast the net too wide, assuming all workers are guilty until proven innocent. That’s just not a best practice.

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