DRUG TEST POLICIES IN A LEGAL HAZE

It will take the wisdom of the Supreme Court of Canada to settle
duelling lower court rulings that leave a conflicting tale of how to
handle workplace drug testing.

Since 2000, human rights commissions policies across Canada have been
guided on the matter largely by a case decided in the Ontario Court
of Appeal. The case centred on Imperial Oil's testing policy which
subjected workers in safety-sensitive jobs to random drug and alcohol
testing. The court found random drug testing discriminatory because
the test only reflects evidence someone has used drugs in recent days
or weeks; the test can't show whether the employee is impaired at the
time of testing.

The court said drug tests should only be given when the employer has
reason to suspect an employee is impaired to the point of affecting
safety and job performance or after an accident on the job, and
testing should only be one part of a program to assess use or abuse
of drugs. Finally, the court said a failed drug test shouldn't
immediately result in job termination; employers have a duty to
accommodate workers by providing rehabilitation or treatment or
transfer to a job where safety is less a concern.

An addiction to drugs or alcohol is considered a disability under
Alberta's human rights law, which makes the dismissal of workers with
such disabilities a matter of discrimination.

But an Alberta court recently gave the dicey matter of drug screening
(and consequences of failed tests) a different spin.

In the Alberta case, a man hired by a contractor working on an
oilsands mega-project was informed in advance that he'd be subject to
a pre-employment drug test. He took the test June 28, 2002, less than
a week after he smoked marijuana. He never mentioned it to the
contractor and assumed the drug would be out of his system by then.

By the time the results were processed, the man had worked for the
contractor for a couple of weeks. His employment was immediately terminated.

The worker never claimed an addiction problem. The company said
because the man hadn't yet completed his probation period and had not
met the conditions of his contract (a clean, pre-employment drug
test), he was not entitled to any "accommodation."

A human rights panel hearing the worker's complaint of discrimination
dismissed his claim.

Although a Court of Queen's Bench ruling sided with the dismissed
worker, a three-judge Alberta Court of Appeal panel said the
contractor's policy didn't assume the worker to be an addict.
Instead, the judgment suggests the policy wasn't focused on who might
be addicted to drugs, but who might present a safety risk because of
drug use in an already dangerous workplace.

"We see this case as no different than that of a trucking or taxi
company which has a policy requiring its employees to refrain from
the use of alcohol for some time before the employee drives one of
the employer's vehicles," wrote the court. "Such a policy does not
mean that the company perceives all its drivers to be alcoholics.
Rather, assuming it is aimed at safety, the policy perceives that any
level of alcohol in a driver's blood reduces his or her ability to
operate the employer's vehicles safety."

And in a call for some commonsense application to drug testing in the
workplace, the court continued: "Extending human rights protections
to situations resulting in placing the lives of others at risk flies
in the face of logic."

But with two courts in two different provinces coming to different
conclusions on the matter of the rights of the individual versus
concerns for safety, employers and human rights commissions across
Canada would surely welcome an appeal of this latest ruling to the
nation's highest court.

Meanwhile, the Alberta court's argument that concerns for public
safety can trump an individual's personal choice to use drugs appeals
to our sense of individual responsibility.

The contractor made no secret of its drug policies; the worker chose
to use an illegal substance less than a week before taking a drug
test. His choice carried a consequence. Shouldn't it?