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DRUG TEST IN THE WORKPLACE Workplace drug tests become harder to refuse. EDMONTON - A few hours earlier, Phyllis Roberto had just been doing her job.  Now, she was being led down a foul-smelling hallway in one of the seediest hotels in Edson, Alta., by three men.  She couldn't really see -- her eyes were stinging and blurry and the skin around them was red and swollen after being sprayed with a chemical glue during an accident at the Weyerhaeuser mill in the town, about 205 kilometres west of Edmonton.  Roberto, a mid-40s mother of five and a technician at the mill, was tired, confused, in pain and, increasingly, humiliated.  Roberto was being taken for a drug test -- standard procedure after workplace accidents at Weyerhaeuser, the international forest products giant that employs 55,000 people in 18 countries.  "I could hear people laughing in the hallway and I thought 'I wonder if they know,' " she recalls.  "I looked pretty rough, like I'd had a rough night and it was ending even rougher." It was February 2003 and Roberto had been unhooking a heavy metal hose on top of a railway tank car full of chemical glue.  Toward the end of her overnight shift, a blast of the material sprayed out of the tank car, hitting Roberto in the face and knocking off her safety glasses.  Fellow workers took her to the hospital.  About 7:30 a.m., after an eye exam, Roberto headed home to sleep.  Several hours later, she was awakened by phone and told she had to have a drug test to see if she was impaired when the accident happened.  When Roberto questioned the need for such a test, she was informed she'd be suspended without pay if she refused, or with pay if she co-operated and took the test.  She would remain suspended until the results came back several days later.  'It didn't feel like I had much of a choice," says Roberto, secretary of Local 447 of the Communications, Energy and Paperworkers Union of Canada.  Roberto expected the test would be done in a clinic setting.  Instead, she found herself in a cheap hotel room with two Weyerhaeuser managers, her union representative and another man who was to collect the urine sample.  "The hotel room smelled like urine and stale cigarettes and old booze and vomit and things like that kind of hotel smells like," she recalls.  Roberto was told to go into the bathroom and produce a sample while the four men sat in the other room, able to hear her urinate.  But she couldn't pee enough.  Finally, she sat on the bathroom floor and cried.  Though she tested negative, rumours circulated around Edson that she might be a drug user -- her teenage daughter was teased by peers who had heard about the test.  Over the next few weeks, she experienced bouts of uncontrolled and unexplained crying, insomnia, nightmares and agitation.  In the spring of 2003, she began counselling and was advised to take a leave from work because she was suffering from post-traumatic stress disorder.  Roberto was unable to go back to work until the end of August.  The Weyerhaeuser short-term disability plan covered her pay only for two weeks, and she was without income for 21/2 months.  In a grievance filed through her union, Roberto is seeking compensation from Weyerhaeuser for her lost wages, pain and suffering.  The application before the Labour Relations Board was completed in November 2003, but a decision has not yet been handed down.  Meanwhile, Weyerhaeuser public affairs manager Sarah Goodman says policies have been changed so workers can be tested in a "clean and appropriate place where someone will feel comfortable." Roberto acknowledges her experience with workplace drug testing might be more negative than most.  But her story illustrates something she thinks is very important.  "Innocent people can and will be hurt if drug testing is not handled carefully," she says.  Roberto's experience offers a cautionary tale and poses difficult questions that employers, employees and government must confront, especially now that Alberta is considering a legislative framework for mandatory drug and alcohol testing in the workplace.  In June, Clint Dunford, the province's minister of human resources and employment, predicted that within five years Alberta would have laws to define an employer's right to test employees for drug and alcohol use.  The government needs to act, Dunford said, to deal with the increasing problem of people showing up for work drunk or drugged, a health and safety issue, especially on construction and industrial sites.  If Dunford proceeds as planned, Alberta -- with a workforce of more than 1.7 million -- would be the only province to set up laws on drug testing.  "I know it's going to be hugely controversial but at some point we've got to deal with impairment in the workplace." In British Columbia, the government is not currently looking at creating laws to define employers' rights to test workers for drugs and alcohol use, says Graham Currie, spokesman for the Ministry of Skills, Development and Labour.  "It's not something that is under consideration in B.C," he says.  Whether or not laws are enacted, workplace drug-testing is becoming more commonplace.  It's hard to know how many Canadian employers test for drugs.  Dr.  Penny Colbourne, director of Dynacare Kasper's substance abuse testing lab in Edmonton, says the company has about 4,000 clients across Canada who test employees for drugs and alcohol.

In the United States, drug and alcohol testing in the workplace is common.  An estimated 49 per cent of full-time workers between the ages of 18 and 49 are subject to some type of workplace testing, up from one per cent in 1983. 

In Canada, the push for new laws on drug and alcohol testing comes from industry.  Representatives of Alberta's oil and gas and construction industries say impairment on the job compromises safety.  But privacy advocates, human rights experts and union officials caution that drug tests are a potential violation of employees' rights, an intrusion on privacy, and of questionable safety value. 

New laws may not only violate the provincial human rights code, they also may run counter to the Canadian Charter of Rights and Freedoms, which has two relevant sections -- one protecting against unreasonable search-and-seizure and another which says citizens must not be deprived of life, liberty or security of person. 

As it stands, employers in Alberta already could be overstepping their legal boundaries when it comes to drug and alcohol testing.  Pre-employment testing, which requires that potential employees take a drug and/or alcohol test before being hired, is common in the oil and gas industry, even though it is discouraged by human rights legislation across the country. 

Oil industry executives are aware their policies could be challenged. 

"The case law is on shaky ground and we'd acknowledge that," says Kevin Smith, Suncor's director of human resources and legal affairs. 

Syncrude spokesman Randy Provencal agrees the whole area is a bit grey. 

"What industry is looking for is clarity here," he says.  "When you are seeing court tribunals ruling in diametrically opposite ways, it sends a mixed message.  Where do we go from here?"

At first blush, human rights laws are confusing, complex and subject to various interpretations. 

The present system has been established from a loose and often-changing set of rules created by the courts, human rights tribunals, and federal and provincial human rights codes, plus negotiations and arbitrations between unions and employers. 

Organizations covered by the Canadian Human Rights Act include federally regulated industries such as banking and airlines, and the federal government.  Provincial human rights acts cover everybody else, and both systems offer similar protections.  The federal and provincial systems are complaint-driven; if nobody complains, violations continue. 

In Canada, employees who test positive for traces of drugs can be considered addicts who are disabled, and that triggers protection under Canadian human rights laws.  Employers must make reasonable accommodations for the disabled individual.  In the case of addictions, this can mean sending employees for treatment at company expense.  Employees who test positive must be brought back to work after they take treatment and test negative for drug and alcohol use. 

In a policy statement issued in 2002, the Canadian Human Rights Commission noted that pre-employment drug and alcohol testing, as well as random drug testing, was unacceptable because the procedures cannot be linked to bona fide requirements of the job. 

It follows, legally speaking, that if the procedures can't be linked to essential requirements of the job, drug and alcohol tests can be intended only to weed out people with the disability of addiction, which is not allowed. 

Repeatedly, human rights policies and court rulings alike have emphasized that not only do drug and alcohol tests discriminate against people with addictions who should be helped rather than fired, the tests are also not effective in measuring the impact of drug use on job performance.  Drug tests don't determine impairment, how much was used, or when; they only show some degree of past use. 

Under special circumstances, judicial and quasi-judicial bodies have allowed alcohol and drug testing in the workplace.  But they have required employers to prove the tests were a bona fide job-related requirement and dealt with a specific problem. 

Other companies, however, have had to dismantle drug and alcohol testing programs after challenges by employees. 

In 1998, the Federal Court of Appeal ruled the Toronto-Dominion Bank's workplace drug testing policy unlawfully discriminated against people who are dependent on drugs.  The policy had insisted on both pre-employment testing and testing after employment on the grounds the bank had to worry about not only the impact of drugs and alcohol on workplace performance, but the security of funds and the public perception of the link between illegal drug use and criminal activity. 

But the bank failed to persuade the court.  Indeed, the human rights tribunal which preceded the federal appeal noted that of 57 incidents of theft by bank employees during an 18-month period, none was linked to drug use. 

The Toronto-Dominion Bank no longer conducts any drug or alcohol tests, said a representative. 

The costs of contentious policies on drug and alcohol testing are more than monetary.  Employees say being put through a drug test affects their personal lives and their feelings about their employer, whether or not the employee tests positive for a banned substance. 

Scott McKay, an electrician from Miramichi, N.B., was concerned about his reputation when he had to take a drug test in April 2003 after needing two stitches for a cut to his thumb.  McKay says his employer, Weyerhaeuser, told employees that drug testing would only be for major incidents when it brought in the policy in January 2003. 

Weyerhaeuser spokeswoman Sarah Goodman confirms this.  "We do tests for cause and for those involved in an accident with the potential to cause significant bodily harm to themselves or others."

McKay wonders how a small cut to the thumb qualifies as "significant bodily harm" and says the minor accident had the potential to severely damage his reputation. 

Though drug tests are supposedly confidential, everyone on a job site knows when one has been ordered.  In McKay's case, it took more than two weeks for the tests to come back negative, and in the meantime, he felt people were looking askance at him.  "What bothers me about drug testing is that people come out and make their own conclusions, whether or not they know the whole story.  All they know is that Joe was sent for a drug test and so obviously he must have looked as if he was drunk or on drugs."

Ledcor, a major Canadian construction firm, follows the Canadian model for drug and alcohol testing and asks for samples from employees after accidents and when there is probable cause. 

Like others interviewed for this article, Dwight Bissette, the Vancouver-based director of health, safety and environmental protection for Ledcor, said experience, not science, tells him there is a problem that drug testing could help solve.  He says that on some job sites in Oregon and California, where Ledcor has offices, pre-employment and random testing has seen seven of 10 employees fail, indicating a problem. 

But Bissette says the biggest reason for workplace accidents and injuries is not drug or alcohol use, but inexperience -- young workers new to a job who don't get enough training with a foreman. 

Edmonton's Brad Anderson, head of the Construction Owners Association of Alberta, quotes a 2001 Cornell University study that shows an average reduction in injury rates of 51 per cent in the two years after drug testing is introduced.  "We feel addressing the drug and alcohol issue is imperative in getting to the next significant reduction in injuries."

Dunford says it's "unknown" whether alcohol or drugs are causing more accidents in provincial workplaces.  "I don't have any empirical evidence as to what the incident rate is."

Regardless, employers say that even if only a small number of people use drugs or alcohol at work, there is big potential for problems, particularly in safety-sensitive positions and industries. 

"If someone is not alert or is impaired in any way, shape or form, all it takes is someone who is inattentive pushing the wrong button," says Syncrude's Provencal.  "It can impact hundreds if not thousands of lives.  It's of paramount concern that we provide a workplace that's safe for everyone."

Nobody would argue with that, but what causes controversy is whether drugs and alcohol cause problems to a degree that justifies widespread drug and alcohol testing. 

Murray Mollard, a lawyer with the British Columbia Civil Liberties Union, says employers have an "important and legitimate interest and responsibility in making sure workplaces are safe and all the more in safety-sensitive positions."

"The next question is, how do you do that? That's where we begin to disagree about whether drug testing is the appropriate means to do that.  From our point of view, it isn't."

Lawyer Barbara Humphrey says the recent criminalization of labour infractions in Canada has also made employers nervous.  In November 2003, the Criminal Code of Canada was amended to create criminal offences for companies and individuals who fail to protect workers and the public. 

Indeed, Suncor's Smith notes his company's policy is motivated by more than a regard for safety.  "We feel that to take our responsibility for safety, all employees should have a pre-employment drug test that not only screens employees, but sends a message that we are a company that is very serious about safety, and coming to work in a fit condition to perform work is something we insist on."

But Ottawa lawyer Eugene Oscapella, a privacy expert and a founding member of the Independent Drug Policy Research Group, says that attitude is wrong-headed. 

"I don't know if it should be the role of employers to act as the police agent for the state, which is in effect what they're going to do.  We don't need that sort of moralizing at the corporate level. 

"The issue is: Is there a problem? Let's get the facts before we start on this highly intrusive thing.  There are very few situations where we allow the state or others to intrude into our private lives to that extent.  That is an extremely intrusive action, forcing someone to urinate."

TRAIL OF ABUSE

Here are some of the substances that urine tests will detect and the length of time the substances are likely to remain in the system after they've been used.  The times are approximate and vary depending on the individual, their pattern of drug or alcohol use and other factors:

Amphetamines: one to two days

Cocaine: two to four days

Marijuana: one to seven days ( occasional use ); one to four weeks ( chronic use )

Opiates: one to two days

Phencyclidine ( PCP ): one to eight days ( occasional use ); up to 30 days ( chronic use )

Alcohol ( breathalyser ): two to 14 hours. 

Source: Dynacare Kasper

bibliography - mapinc.org/drugnews/v04/n1023/a03.html?106032
Source: Victoria Times-Colonist (CN BC)
Copyright: 2004 Times Colonist

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