'REEFER' ROSS SHOULD HAVE USED A MASKING AGENT

When Canadian snowboarding gold medalist Ross Rebagliati was temporarily
stripped of his medal because a drug test showed marijuana in his system,
fans and Olympic Committee members alike began asking questions about the
morality of drug testing.

In the case of Rebagliati, whose gold medal was returned following an
appeal of an International Olympic Committee decision to disqualify him,
the test was considered unfair because marijuana is not a
performance-enhancing drug. Although fairness wasn't used as an argument in
the appeal, most people felt that, if anything, pot would ruin an athlete's
performance.

But the episode has put the issue of drug testing - and not just in the
Olympics - under the spotlight. Dave Simpson, owner of 118 Avenue retailer
Sideshow Dave's, sells products designed to help pot-smokers get past urine
tests. Simpson says he sells the kits, called Test Away, because he feels
drug tests are unfair.

"What I feel is extremely important in any discussion (on drug testing) is:
is it right? Is it an infringement on your rights that if you refuse the
test, you lose your job," Simpson asked. "Legislation doesn't require the
employer to show you the test results."

Simpson suggests some employers are testing employees so they have an
excuse to fire someone. Another element of drug testing Simpson finds
unfair is the fact some drugs are more easily detected than others.

Trefor Higgins, co-director of clinical chemistry with Dynacare-Kasper
Medical Laboratories, says drugs such as cocaine, and hallucinogens, are
flushed from our bodies at a more rapid rate than marijuana. As a result,
marijuana can be detected in a urine sample up to eight weeks after a
person has smoked up. But a person who gets drunk might not have evidence
in a sample the following day.

"Why can an employer who has never seen an employee smoke (pot) on the job
hold it against him for smoking on the weekend," Simpson wondered. "You're
more dangerous hung over. Don't they know the effects of marijuana don't
last for days and days?"

Bob Blakely, a city labor lawyer, agrees it is possible employers are
dismissing employees wrongfully.

"If there isn't a union and if the person isn't relatively knowledgeable,
and they pee in the bottle and score in the gold - they're just sent down
the road," Blakely said. "That's life."

A couple of civil cases on drug testing - involving Imperial Oil and the
Toronto Dominion Bank - are slowly winding their way through Canada's
courts. For the most part, Blakely says, issues surrounding drug testing in
the workplace are only beginning to surface.

"These cases stand for the principle that universal pre-employment testing
isn't allowed if you can't show (a workplace is) safety sensitive or risk
sensitive. In the bank's case, if you're a hop head they don't want you
swimming in the money pool. Or people could blackmail you or pressure you
if they found out about it, or they'd want to say 'let me just tuck a few
of those million dollars into my pocket so I can get some nose candy.' "

In Alberta, the Individuals' Rights Protection Act covers drug testing and
outlines cases where drug tests can be conducted: when an employer offers a
prospective employee a job on the condition that he or she passes a drug
screening; or for cause (your on-the-job performance drops suddenly or you
appear obviously intoxicated); or following a so-called significant
incident, such as an industrial accident. Random drug tests are against the
law, Blakely says.

The use of so-called masking agents, such as the Test Away product sold by
Simpson, complicates things. There are no laws against the masking agents
or detoxification products designed to flush evidence of drugs from a
user's body.

Higgins says the masking agents work. They are the latest in a long line of
strategies used to avoid detection. In response, laboratories first test
the integrity of a urine sample, he says. If masking agents are detected,
the sample is considered inconclusive. But use of the agents is low.
Higgins estimates that during the last three months, the lab has probably
run 4,000 to 5,000 drug tests and masking agents or other so-called
adulterants (products added to a urine sample to foul a test) have been
found in no more than three samples.

Whatever the rate of fouled samples, though, the issue isn't about to die.
Blakely says the practice and policies surrounding workplace drug testing
are still in their infancy.

"This whole issue is up in the air. There are no definitive decisions, no
definitive rules, and things are being shaped as time goes on; it is a
minefield for everybody," he said.

But Blakely sees the need for some such tests.

"Lots of companies want to have a drug-testing policy because they see it
as part of due diligence. If you're driving a truck and run into a building
and fricassee it, the liability possibilities are horrendous. We need to
land somewhere between those two poles."