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Workplace war on drugs



imagesAlthough former US President Richard Nixon coined the term ‘War on Drugs’ in a 1971 speech about heroin addiction among soldiers serving in Vietnam, it was Ronald Reagan who ramped up the War on Drugs and shifted its focus to the workplace.

In his 1991 article, A History of Drug Testing, DL Ackerman recounts the foundation of workplace drug testing in the United States
In 1981, a US Navy fighter jet attempting a night landing on the USS Nimitz aircraft carrier failed in its approach. Blamed on unusually rough seas, the subsequent crash killed 14 crew members and injured 45 others. Autopsies revealed that several members of the flight deck crew tested positive for marijuana. Despite the fact they could not have possibly contributed in any way to the accident, President Reagan reacted with a ”Zero Tolerance” drug policy for all armed service personnel, followed by an executive order in 1986 establishing a drug-free workplace for all federal employees. Soon after, the US Department of Transportation turned its attention to transportation workers, including ship captains, pilots and truck drivers.

Private companies began testing following the passage of the 1988 Drug-Free Workplace Act, which required recipients of any government money to “maintain a drug-free workplace.” The proportion of private companies with drug-testing programs soared from 21 percent in 1987 to 81 percent in 1996, according to the American Management Association.

The drug testing industry, nurtured by politicians and purveyors of morality alike, is today a multi-billion dollar industry that includes collection sites, laboratories, testing equipment manufacturers, medical review officers, consultants, drug treatment clinics and hired lobbyists. One testing company, Quest, boasts 2011 revenues of $7.5 billion on its website.

While drug testing has become big business, so, too, has its antithesis, the detox industry. A quick Internet search reveals a huge number of products, pharmacies and professionals offering increasingly ingenious (and often dubious) methods of beating drug tests.

More recent statistics show American employers moving away from drug testing, down from 81 percent in 1996 to 62 percent in 2004, according to the AMA. Truck News reports that the number dropped even further in 2011 to 57 percent.

One reason for this downward trend might be cost. A 1999 American Civil Liberties Union study showed the federal government spent $11.7 million to find 153 drug users among the almost 29 000 employees it tested in 1990. This worked out to a cost of $77 000 per positive test.

Things have played out differently here in Canada. Although rulings about drug and alcohol testing have been inconsistent, courts and labour tribunals have been friendlier toward the concept in the West than in the East. Regardless of jurisdiction, courts and adjudicators have generally drawn the line at random drug and alcohol testing. One major sticking point has been random drug testing’s inability to measure current impairment. With no proven impact on safety, courts have been reluctant to declare such a violation of privacy justified.

In Alberta, pre-employment and post-incident testing are common in the oil patch, despite little research connecting drug testing with improved safety on the job. In a report to Alberta Human Resources and Employment in 2003, the Advisory Committee on Impairment in the Workplace wrote, “While using alcohol or other drugs can lead to unacceptable risk when job duties are performed, and while worker testing can detect the presence of such substances, this doesn’t necessarily mean that the person within whom a substance is detected is impaired (in the conventional sense) at work.”

Announced in June, Alberta’s new Drug and Alcohol Risk Reduction Pilot Project (DARRPP) is a two-year initiative aiming to evaluate and report on the effectiveness of comprehensive workplace alcohol and drug programs including random workplace testing.

With the exception of the Christian Labour Association of Canada, which is listed as a stakeholder, unions have expressed their opposition to DARRPP, asserting that it constitutes an impermissible intrusion on the privacy rights of employees.

Bob Barnetson, associate professor of labour relations at Athabasca University, suggests DARRPP and employers are missing the point.

“In Alberta’s energy and construction industries, employers have adopted a just-in-time approach to the labour force. They bring in workers from far away, pay them well, work them hard and force them to live in isolated camps,” he says. “Not surprisingly, there is some use of drugs to cope with the stress of those conditions. Instead of fixing the structural conditions causing drug use, the employers start testing for dope use and disciplining.” Barnetson says, adding that he wonders how many workers switch from marijuana to harder drugs, which can be harder to detect.

One of the first companies to get on board with DARRPP was Suncor, which announced it planned to start mandatory random drug testing at its oil sands facilities in October. The Communications, Energy and Paperworkers Union (CEP), which represents 3400 workers at Suncor, filed a grievance arguing random drug testing violates its members’ right to privacy. With the company threatening to implement the policy before the grievance was heard, CEP applied for and was granted an injunction until an arbitration board renders a decision on the grievance.

“We are very concerned about the issue of health and safety in our workplace,” stated CEP Local 707 President Roland LeFort in a press release. “We want all of our members to arrive home safely at the end of their shift, but we disagree with Suncor that this is the best method to accomplish this important goal.”

“We know that random drug and alcohol testing does not improve safety outcomes and that it is clearly an invasion of privacy,” continues Lefort.  He says the union strongly supports measures like education and rehabilitation and wants to work with Suncor to implement them.

Suncor, which claims that three of the seven deaths that have occurred at its Fort McMurray oil sands operation since 2000 involved workers under the influence of alcohol or drugs, unsuccessfully appealed the injunction. The grievance hearing began Monday.

Last week, the Supreme Court of Canada waded into the debate. In 2006, Irving Pulp and Paper Ltd introduced a workplace policy at its Saint John mill that included mandatory random alcohol testing for employees holding safety-sensitive positions. One employee, a member of CEP Local 30, was randomly tested and, although his test revealed a blood-alcohol count of zero, the union filed a policy grievance challenging the reasonableness of the policy. An arbitration board ruled in favour of the union, saying that Irving had failed to establish a need for the policy. Irving appealed and a Court of Queen’s Bench judge reversed the arbitration board’s decision. When the union lost its appeal at the New Brunswick Court of Appeal—which sided with the lower court and quashed the arbitrator’s decision—it begged for and was granted leave to appeal to the Supreme Court.

In their written submission to the SCC, CEP argued that 25 years of arbitral case law rejects the notion that an employer may introduce random alcohol or drug testing without reasonable grounds. Fredericton-based lawyer David Mombourquette, representing CEP, argued a breathalyzer is an involuntary submission of bodily fluids and amounts to a high level of random personal intrusion. He told the court that employers must be reasonable when unilaterally implementing policies, pointing out that the union and company have agreed on various measures to address the perceived problem of workplace impairment, including post-incident testing and testing for reasonable cause.
Nathalie Des Rosiers, the general counsel and executive director for the Canadian Civil Liberties Association, which acted as an intervener in the Irving case, told the National Post last week, “We are concerned that this is a new trend in Canada where you have more and more employers who are imposing quite invasive tests and employees have no choice but to comply because their job is at stake,” adding that it’s not always clear that those tests are necessary.

For their part, DARRPP says it solicited input from human rights and privacy agencies and independent experts, including the Alberta Human Rights Commission and the Office of the Information and Privacy Commissioner to ensure the pilot addressed social concerns and legal requirements. Asked if the Suncor and Irving cases may cause them to adjust their plans, the project administrator declined to speculate what the court and arbitrator might decide, but admits they are watching the two cases with great interest. “When the decisions are announced,” Pat Atkins advised in an email. “We will take these into consideration in terms of our path forward.”

Workers and employers across the country hope the Supreme Court, which reserved its decision, will offer some clarity about the future of random mandatory drug and alcohol testing in Canada.

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