Workers to be tested following work site accident or near miss
Unionized construction workers in British Columbia will be subject to alcohol and drug testing under a groundbreaking agreement between unions and contractors.
The Substance Abuse Testing and Treatment Program Policy, signed by the Construction Labour Relations Association (CLRA) of B.C. and the Bargaining Council of B.C. Building Trades Unions, requires workers to be tested after an accident or near miss or if there is reasonable suspicion of on-the-job impairment.
“Employers have an obligation to provide a safe work site,” said Clyde Scollan, president of the Vancouver-based CLRA, which represents 350 construction contractors. “Drug and alcohol testing is recognized as part and parcel of that.”
While workplace drug-testing policies aren’t new, said Scollan, this is the first agreement negotiated by employers and unions.
“We are trying to work with the unions as we see that as the best way for the industry as a whole to succeed,” he said. “I’m really pleased. It was unanimously approved by all 14 building trades in the province.”
In an attempt to avoid penalizing workers for after-hours recreational use, the policy says if a worker’s initial urinalysis tests positive for marijuana, then a secondary blood or saliva test will be performed. The second test will narrow the window of use from weeks to hours, said Scollan.
“We opted for a non-invasive testing policy that is designed to measure possible current impairment on the job, not what you did last week,” said Mark Olsen, president of the bargaining council, in a statement. (Olsen was not available for comment for this story.)
The policy covers all of the province’s 35,000 unionized construction workers, who work mostly in industrial construction. There are about 100,000 non-union construction workers in the province, estimates Scollan.
The policy has been in development since early 2007 and the agreement was signed in May, said Scollan.
There was the potential for a number of major industrial projects in the province and CLRA wanted a policy in place before the projects started. One of those is a $2-billion upgrade to Rio Tinto Alcan’s smelter in Kitimat, which has already adopted the new drug-testing policy, said Scollan.
The policy requires testing after an accident or near miss when the initial investigation indicates drugs or alcohol may have been involved. It also allows for testing if there is a reasonable suspicion of on-the-job impairment.
“We will be providing supervisory training so supervisors can better recognize if there is a drug or alcohol problem with their crew,” said Scollan.
While some projects require pre-access screening, the policy will give workers a way around that. Workers can be voluntarily tested and if they test negative and agree to random testing over three years, they’ll go into a pool of workers who don’t require pre-access testing, said Scollan.
The policy covers tests for alcohol and nine other drugs, including marijuana, cocaine, methadone, amphetamines and barbiturates. If an employee tests positive, he won’t be allowed to return to work until an addiction specialist clears him for work. The worker must also agree to any required treatment or counselling, which is covered under collective agreements, and agree to random follow-up tests over the next two years.
The policy is a good first step and will probably filter down into other aspects of the industry, said Manley McLachlan, president of the B.C. Construction Association in Victoria. Alcohol and drug abuse has been on the association’s radar for some time.
“You can’t ignore the problem,” said McLachlan. “It affects productivity, it affects the performance of your other employees and there’s a health and safety issue.”
Addiction is considered a disability under the Canadian Human Rights Code, so employers have to accommodate workers with an addiction to the point of undue hardship, said Tom Beasley, a human rights and employment lawyer with Vancouver-based law firm Coutts Pulver.
The policy developed by the CLRA and the bargaining council includes a clear treatment policy, which should help protect employers against human rights complaints, said Beasley.
“It’s a very well thought-through policy,” he said.
Drug-testing policies are becoming more common, especially in industrialized settings, and among large employers, he said.
“As you increase the number of employees and as you increase the risk to both the employee and to others of being intoxicated in the workplace, you increase the chance and the need for a drug- and alcohol-use policy in the workplace,” said Beasley.
BC Ferries implemented a drug policy in February after investigations by BC Ferries and the Transportation Safety Board of Canada found crew members of the Queen of the North smoked marijuana between shifts the night the ferry sank in 2006. This policy calls for mandatory testing “when reasonable cause exists.” But unlike the CLRA policy, the BC Ferries policy was imposed on the union.
The oil and gas industry in Alberta also has mandatory drug testing for employees, said McLachlan.
“Every employee coming on to their work site has to be tested,” he said.
Despite the fact the unions signed off on the policy, there is still some question as to whether or not all the members actually agreed to it, said Micheal Vonn, policy director of the B.C. Civil Liberties Association in Vancouver. Some construction workers on call-in radio programs say the first they’ve heard of the policy has been in the news, she said.
“That’s troubling if that’s the case,” she said. “What’s really happening here? Has this really been agreed upon? Has this been investigated from the vantage point of what it means to the members’ lives? I don’t know.”
When an agreement of this magnitude is reached in one industry, other industries are going to want to follow suit and insist on a similar, or harmonized, policy, said Vonn.
“Undoubtedly this will foster a push in other arenas for more routine drug testing and that of course is a concern,” she said.
While all parties involved are adamant workers are tested only for impairment, and not what they do in their personal time, it’s not possible to draw such a clear line between the two, said Vonn.
“It is not our information that there are readily available, or available at all, tests that will show impairment as opposed to use within a certain window,” she said. “In that case you are gathering information that the employer has no right to.”
Drug testing
Guidelines for policy development
The Canadian Human Rights Commission allows for the following types of testing in a workplace drug- and alcohol-testing program if an employer can demonstrate these are bona fide occupational requirements:
• Random alcohol testing of employees in safety-sensitive positions. Random drug tests aren’t allowed because alcohol testing can indicate actual impairment, while drug testing can only detect the presence of drugs and not if or when an employee may have been impaired.
• Drug or alcohol testing when there are reasonable grounds to believe there is an underlying problem of substance abuse or where an accident has occurred due to impairment from drugs or alcohol, provided testing is part of a broader program of medical assessment, monitoring and support.
• Periodic or random testing following disclosure of a current drug or alcohol dependency or abuse problem may be acceptable if tailored to individual circumstances and part of a broader program of monitoring and support.
• Mandatory disclosure of present or past drug or alcohol dependency or abuse may be permissible for employees holding safety-sensitive positions, within certain limits, and in concert with accommodation measures.
The International Labour Organization in Geneva has the following recommendations for employers looking at implementing a drug-testing policy:
• Policy: There must be a written policy document, the content of which is known to all concerned. The policy should include prevention, identification, counselling, treatment, rehabilitation and details on when disciplinary action will be taken.
• Confidentiality: Must be strictly observed.
• Quality: Initial screening and confirmation methods must be based on different principles of analytical chemistry or different chromatic separations (first test immunoassay, confirmation test gas chromatography). Tests should be carried out by an accredited laboratory using accepted guidelines for procedures.
• Consultation: Policy should be developed in consultation with workers or unions.
• Review: Procedures should be regularly reviewed to make continuous improvement
The Substance Abuse Testing and Treatment Program Policy, signed by the Construction Labour Relations Association (CLRA) of B.C. and the Bargaining Council of B.C. Building Trades Unions, requires workers to be tested after an accident or near miss or if there is reasonable suspicion of on-the-job impairment.
“Employers have an obligation to provide a safe work site,” said Clyde Scollan, president of the Vancouver-based CLRA, which represents 350 construction contractors. “Drug and alcohol testing is recognized as part and parcel of that.”
While workplace drug-testing policies aren’t new, said Scollan, this is the first agreement negotiated by employers and unions.
“We are trying to work with the unions as we see that as the best way for the industry as a whole to succeed,” he said. “I’m really pleased. It was unanimously approved by all 14 building trades in the province.”
In an attempt to avoid penalizing workers for after-hours recreational use, the policy says if a worker’s initial urinalysis tests positive for marijuana, then a secondary blood or saliva test will be performed. The second test will narrow the window of use from weeks to hours, said Scollan.
“We opted for a non-invasive testing policy that is designed to measure possible current impairment on the job, not what you did last week,” said Mark Olsen, president of the bargaining council, in a statement. (Olsen was not available for comment for this story.)
The policy covers all of the province’s 35,000 unionized construction workers, who work mostly in industrial construction. There are about 100,000 non-union construction workers in the province, estimates Scollan.
The policy has been in development since early 2007 and the agreement was signed in May, said Scollan.
There was the potential for a number of major industrial projects in the province and CLRA wanted a policy in place before the projects started. One of those is a $2-billion upgrade to Rio Tinto Alcan’s smelter in Kitimat, which has already adopted the new drug-testing policy, said Scollan.
The policy requires testing after an accident or near miss when the initial investigation indicates drugs or alcohol may have been involved. It also allows for testing if there is a reasonable suspicion of on-the-job impairment.
“We will be providing supervisory training so supervisors can better recognize if there is a drug or alcohol problem with their crew,” said Scollan.
While some projects require pre-access screening, the policy will give workers a way around that. Workers can be voluntarily tested and if they test negative and agree to random testing over three years, they’ll go into a pool of workers who don’t require pre-access testing, said Scollan.
The policy covers tests for alcohol and nine other drugs, including marijuana, cocaine, methadone, amphetamines and barbiturates. If an employee tests positive, he won’t be allowed to return to work until an addiction specialist clears him for work. The worker must also agree to any required treatment or counselling, which is covered under collective agreements, and agree to random follow-up tests over the next two years.
The policy is a good first step and will probably filter down into other aspects of the industry, said Manley McLachlan, president of the B.C. Construction Association in Victoria. Alcohol and drug abuse has been on the association’s radar for some time.
“You can’t ignore the problem,” said McLachlan. “It affects productivity, it affects the performance of your other employees and there’s a health and safety issue.”
Addiction is considered a disability under the Canadian Human Rights Code, so employers have to accommodate workers with an addiction to the point of undue hardship, said Tom Beasley, a human rights and employment lawyer with Vancouver-based law firm Coutts Pulver.
The policy developed by the CLRA and the bargaining council includes a clear treatment policy, which should help protect employers against human rights complaints, said Beasley.
“It’s a very well thought-through policy,” he said.
Drug-testing policies are becoming more common, especially in industrialized settings, and among large employers, he said.
“As you increase the number of employees and as you increase the risk to both the employee and to others of being intoxicated in the workplace, you increase the chance and the need for a drug- and alcohol-use policy in the workplace,” said Beasley.
BC Ferries implemented a drug policy in February after investigations by BC Ferries and the Transportation Safety Board of Canada found crew members of the Queen of the North smoked marijuana between shifts the night the ferry sank in 2006. This policy calls for mandatory testing “when reasonable cause exists.” But unlike the CLRA policy, the BC Ferries policy was imposed on the union.
The oil and gas industry in Alberta also has mandatory drug testing for employees, said McLachlan.
“Every employee coming on to their work site has to be tested,” he said.
Despite the fact the unions signed off on the policy, there is still some question as to whether or not all the members actually agreed to it, said Micheal Vonn, policy director of the B.C. Civil Liberties Association in Vancouver. Some construction workers on call-in radio programs say the first they’ve heard of the policy has been in the news, she said.
“That’s troubling if that’s the case,” she said. “What’s really happening here? Has this really been agreed upon? Has this been investigated from the vantage point of what it means to the members’ lives? I don’t know.”
When an agreement of this magnitude is reached in one industry, other industries are going to want to follow suit and insist on a similar, or harmonized, policy, said Vonn.
“Undoubtedly this will foster a push in other arenas for more routine drug testing and that of course is a concern,” she said.
While all parties involved are adamant workers are tested only for impairment, and not what they do in their personal time, it’s not possible to draw such a clear line between the two, said Vonn.
“It is not our information that there are readily available, or available at all, tests that will show impairment as opposed to use within a certain window,” she said. “In that case you are gathering information that the employer has no right to.”
Drug testing
Guidelines for policy development
The Canadian Human Rights Commission allows for the following types of testing in a workplace drug- and alcohol-testing program if an employer can demonstrate these are bona fide occupational requirements:
• Random alcohol testing of employees in safety-sensitive positions. Random drug tests aren’t allowed because alcohol testing can indicate actual impairment, while drug testing can only detect the presence of drugs and not if or when an employee may have been impaired.
• Drug or alcohol testing when there are reasonable grounds to believe there is an underlying problem of substance abuse or where an accident has occurred due to impairment from drugs or alcohol, provided testing is part of a broader program of medical assessment, monitoring and support.
• Periodic or random testing following disclosure of a current drug or alcohol dependency or abuse problem may be acceptable if tailored to individual circumstances and part of a broader program of monitoring and support.
• Mandatory disclosure of present or past drug or alcohol dependency or abuse may be permissible for employees holding safety-sensitive positions, within certain limits, and in concert with accommodation measures.
The International Labour Organization in Geneva has the following recommendations for employers looking at implementing a drug-testing policy:
• Policy: There must be a written policy document, the content of which is known to all concerned. The policy should include prevention, identification, counselling, treatment, rehabilitation and details on when disciplinary action will be taken.
• Confidentiality: Must be strictly observed.
• Quality: Initial screening and confirmation methods must be based on different principles of analytical chemistry or different chromatic separations (first test immunoassay, confirmation test gas chromatography). Tests should be carried out by an accredited laboratory using accepted guidelines for procedures.
• Consultation: Policy should be developed in consultation with workers or unions.
• Review: Procedures should be regularly reviewed to make continuous improvement
