Middle ground on drug testing (Editor’s notes)

U.S.-style random drug tests will probably never be the norm in Canada

Fewer things are more contentious in the workplace than drug and alcohol testing of employees. Random testing of all employees — not uncommon in the United States — has been repeatedly shot down on this side of the border. It simply goes too far and infringes too much on the rights of individuals. Employers holding their breath for U.S.-style testing will end up passing out. It’s just not going to happen, barring major legislative changes.

But a middle ground is emerging. In typical Canadian style, a compromise has been struck between a worker’s rights and an employer’s need to protect employees and the public from people intoxicated or high on the job.

In the Sept. 22 issue, we took a look at a groundbreaking deal between construction unions and employers in British Columbia that opened the door to alcohol and drug testing after workers are involved in accidents or near misses, or if there is reasonable suspicion of on-the-job impairment.

We touted it as groundbreaking because of the co-operation between unions and employers to arrive at a reasonable policy. But it’s not an isolated case. Earlier this year, B.C. Ferries introduced a similar policy for its workers in the wake of the sinking of the Queen of the North in March 2006.

And late last month, the Toronto Transit Commission (TTC) — the nation’s largest transit system that shuttles 1.5 million passengers per day — unveiled plans for a “fitness for duty” plan. It wants to test TTC workers in safety-sensitive jobs if there is reasonable suspicion they have been using drugs or alcohol on the job, or following an incident in which drug or alcohol use is suspected as the cause.

The TTC commissioned a report into drug and alcohol testing. Of particular note, it concluded there had been four incidents of “operators” found to be under the influence of alcohol this year while in “revenue operation.” Translated: Workers were impaired on the job.

Staff who prepared the report recommended the TTC conduct random drug tests of all employees in safety-sensitive positions, specified management positions and designated executive positions to act as a deterrent. The report cited figures from the U.S. that showed the number of workers testing positive in random drug tests steadily fell from 1.76 per cent in 1995 to 0.79 per cent in 2005. Over the same time, the violation rate for random alcohol tests fell from 0.25 per cent to 0.12 per cent. Those are pretty compelling statistics.

But, under the current regulatory regime, random drug tests probably won’t stand up to the scrutiny of courts and arbitrators. Not to mention, if there’s a union involved, it’s highly unlikely it’s going to play along.

Bob Kinnear, head of the Toronto transit workers’ union, started talking labour disruption or legal action if the TTC went ahead with its plan. His tone was more muted when the TTC abandoned the idea of random drug tests. He said the plan should be discussed between the union and the TTC, not “arbitrarily rammed down our throats.” But he called it “encouraging” that some on the commission recognized how invasive random testing would be.

Drug and alcohol testing is not going away. Employers have a duty to provide a safe workplace and an obligation to protect the public from the actions of workers, and they need an effective mechanism to monitor and deter employees from misbehaving. The policies being put forward strike a great balance. An integral part of all the Canadian policies is access to assistance for employees who test positive, so they can deal with any addiction and substance-abuse problems. This isn’t an excuse to dump employees — it’s an opportunity to help them.

It’s refreshing to see compromise on this front and watch policies evolve that almost all employers can adopt.

To read the full story, login below.

Not a subscriber?

Start your subscription today!