Points to Ponder about Random Drug Testing

The use of random drug and alcohol testing within the workplace is a very hot topic right now and has caused a fair bit of debate amongst unions, employees and employers. The debate in regards to the efficacy and appropriateness of drug testing in the workplace is not a new one as the issue has been brought to the attention of the Courts a number of times. Let us try and take a rational look at the real evidence so we can make an informed decision, not one based on fear mongering and inflammatory statistics.

 

Some of the basic points of contention include:

• Isn’t the testing an infringement on our privacy?
• Does it actually improve the safety within the workplace?
• If it is an infringement on privacy are the reasons good enough to make it reasonable?
• Are the tests fair? (Can I test positive for something I did on the weekend vs. today at work?)
• What are the actions that are appropriate when a test is confirmed positive?

 

It is important first to understand the different types of drug and alcohol testing that are already occurring within safety sensitive workplaces within Canada but come under less fire. The TTC, as an example, instituted a Fit for Duty Policy in 2008 (after a worker who was killed in a subway tunnel was found to have marijuana in their system) which included the addition of pre-employment testing, reasonable cause testing, post-incident testing and return-to-work testing when an employee returns from a treatment programme. They did, at that time, also discuss random drug testing, but the idea was quashed by the board.

 

Types of Testing

Pre-employment screening is exactly what it sounds like, testing an applicant before they are hired, and has been used for pilots (military and non) since the 80s, even in Canada. Reasonable cause testing is also fairly self-explanatory, those are the situations where one is in the workplace and it is felt that, due to their actions/behaviour, they are intoxicated/unfit for duty. It is then deemed appropriate to have the right to confirm or disprove this by performing a drug and alcohol test immediately. Post-incident testing is a test that is given (within a very short timeframe of the incident) when there has been an accident of some kind at a worksite to see whether the accident was caused due to the employee being under the influence of alcohol or drugs. Obviously this information could be of interest not only to the employers but also to the insurance company. The final testing situation already in use in Canada is the return-to-work test, when an employee is returning from a treatment programme and must be tested before being allowed to once again take up their position. These are all drug testing protocols which are already in place, not only within the TTC but also in numerous companies which deal with safety sensitive jobs (such as the oil fields, mining, pulp and paper, and construction).

The Supreme Court of Canada has stated that the dangerousness of the workplace only justifies testing particular employees in certain circumstances (those outlined above), but that random testing by an employer is only justified in certain circumstances. The courts are always concerned with balancing the privacy rights of Canadians with the evidence that there is a drug and/or alcohol problem within the company and the size of the negative effects/outcomes if there were to be an accident due to an employee being intoxicated (one would imagine this equation would include injury/loss of life as well as monetary consequences).

“It has never, to my knowledge, been held to justify random testing, even in the case of ‘highly safety sensitive’ or ‘inherently dangerous’ workplaces like railways (Canadian National) and chemical plants (DuPont Canada Inc. and C.E.P., Loc. 28-0 (Re)(2002), 105 L.A.C. (4th) 399), or even in workplaces that pose a risk of explosion (ADM Agri-Industries), in the absence of a demonstrated problem with alcohol use in that workplace.”

Supreme Court of Canada regarding overturning Irving Pulp and Paper’s right to random drug test, 2013.

 

When Is Testing Acceptable?

This leads us to the question, the biggest question there is, how many lives (or how much money) has to be on the line for safety to become more important than a workers privacy? The Department of Transportation in the United States decided in 1991 (when they passed the Omnibus Transportation Employee Testing Act) that all DOT agencies were to implement drug and alcohol testing (including random) of safety-sensitive transportation employees. The safety of those on the road, in the planes and on the buses, was deemed more important than the privacy (in this case the knowledge of what that individual had taken into their body) of the employees being tested. This means that all commercial drivers, pilots to transport drivers, are required to undergo the testing in the U.S. But here in Canada the Supreme Court is currently looking at this issue saying there must be some evidence of a problem first, basically that they are not willing to be preemptive, the law will come after the crime/crisis. So there would need to be a huge accident (or a number of them) on a worksite, which was shown to be due to an employee under the influence, before it would become appropriate to instil random drug and alcohol testing at that workplace.

 

This is in keeping with the proportionality assessment approach being used for these cases, the weight of the damage that could be caused versus the weight of the infringement on privacy. A company must be able to show that the testing had an impact on decreasing any deemed safety risks; which is fairly difficult when one is trying to be preemptive, rather than waiting for a horrible incident to occur to show just how bad it would be. And, it would likely have to be a pretty bad incident; at Suncor there were three deaths in a seven-year period where drugs and alcohol were proven to be a factor, and between 2004 and August 2013, there were 2,276 “security incidents” involving drugs and alcohol, yet an arbitrator decided that Suncor still didn’t show an out-of-control drug or alcohol culture giving them the right to do random drug testing of their unionized employees. So, how many people have to die for it to be seen as enough of a problem to slightly infringe on someone’s privacy? It seems odd that we need catastrophe to motivate safety, shouldn’t employees (or those being serviced, ie. children on a school bus) be able to be confident that they are not going to be inadvertently hurt (nevermind killed) due to an employee being compromised? What we are weighing here is the likelihood of injury or loss of life of other employees/those being serviced (after we decide home many is enough, 3 deaths in 7 years wasn’t enough) vs. privacy of the employee in a safety sensitive job (someone HIRED to do a safety sensitive job, knowing that it is a safety sensitive job). So, which is more important, the lives of the children on the bus or the driver’s right to not have someone swab his mouth?

 

Union heads have been writing furiously about this topic, and one of their main points of argument is that there is no good evidence that random drug testing is effective. This point has truth to it, but of course there is no good evidence that it is NOT effective either. Unfortunately all this really tells us is that there are no good studies done regarding this topic. There have been a few studies with regard to drug testing in the workplace (and none found were specifically about random drug testing) but sadly they are all very poorly done, and both the positive and negative results (there are both) are not scientifically worthy due to poor research protocols and systems.

 

Are The Tests Fair?

A very valid question raised by the union is to whether or not the tests are fair. That is, do the tests appropriately indicate what your state is at the moment of the test or could you test positive for something you did days ago, when you were off work. This is an important question and a very reasonable one, it is fair to assume that what we do on our time (off duty) is no business of our employers (though if one had an addiction problem and it carried over into work that would be different). The TTC has clearly considered this issue as CEO Andy Byford stated “Random testing — and this is important — only tests for impairment at work. What you do on your own time is none of our business as long as it doesn’t affect your ability to do your job. What you do at work however is very much our business.”

 

Because of this issue the TTC has decided to use oral fluid tests, as compared to urinalysis. Urinalysis looks for metabolites produced by the ingested drug (chemical byproducts of the body processing the drug) and is able to assess drug use based on the evidence of the metabolites within the urine. It is however possible with this type of analysis, called immunoassay, to test positive for drugs which were taken days previously. This all has to do with each individual, their weight, their metabolism and other such physiological aspects. Oral fluid tests, and breathalyzers, on the other hand are testing for oils and/or chemicals (ethanol) from the drug within the fluid of the mouth, meaning that the substance would have been taken in within a fairly recent timeframe. It seems the TTC are doing all in their power (the technology available being a parameter of course) to be as fair as possible with the testing by choosing this type.

 

What Does A Positive Test Mean?

The last big question regarding this new random drug testing protocol is what happens if you DO get caught with drugs/alcohol in your system? The answer to this is impacted by the fact that in Canada courts and rights tribunals have acknowledged that drug and alcohol dependencies are medically recognized as disabilities under human rights law. This means that should you have a dependency issue of some kind, you can not be fired/disciplined for it, and your employer could even have a porgramme with a rehabilitation service/clinic to help the journey back to sobriety. Brad Ross, the TTC’s executive director corporate communications and Bob Kinnear (union president) have both spoken about the TTC’s employee family-assistance plan that allows workers to get the treatment they need, without penalty, as long as the worker has declared a problem; and both encourage TTC employees with substance-abuse issues to voluntarily come forward to access the help that they need. But, Ross also points out “If you do test positive in a random test, and you haven’t declared to us that you have a dependency, then that is not going to be an excuse for being impaired at work.”  

 

This view is no doubt in keeping with the fact that recreational use of drugs or alcohol is not protected under human rights law, where a ‘recreational user’ is a person who uses drugs or alcohol, but is not dependent on, or addicted to drugs or alcohol. If the person does not have a dependency then they therefore do not have a disability. Ross said that there is not a specific discipline system for the employees who have tested positive, the repercussions of a failed test will be handled in a case-by case basis, although Ross did indicate employees could face disciplinary action including dismissal for even one failed test saying, “One failed test could’ve resulted in a fatality.”

 

Because our society does not view favourably (or with much forgiveness) the affliction of addiction it would not be surprising to find that TTC employees (or any companies employees) are not rushing to indicate to management that they have a dependency issue and require help. In keeping with this reality it seems that it would be far better for the policy to NOT include disciplinary action on a first failed test, but instead be taken as a sign that help is required. It would be the perfect opportunity to afford that employee a chance to get help, to change their life in a positive way, hopefully forever. The most important goals of any drug and alcohol testing policy should be the health and safety of their employees, making sure that workers and those being serviced are safe, and that the employees are able to access the help they need to continue leading healthy productive lives. It’s what is best, for everyone.