COURTS THWART DRUG POLICIES

Canadian Firms' Hands Tied In Stopping Drug Use

Never, never, never believe any war will be smooth and easy, or that
anyone who embarks on the strange voyage can measure the tides and
hurricanes he will encounter.

- --Sir Winston Churchill

Employers' war on drugs is being fought on two fronts -- the workplace
and the courtroom. U.S. employers are winning in both. Armed with the
freedom to test for drugs, employees can be fired and the courts will
not interfere. Canadian employers, meanwhile, have little artillery,
as courts continue to strip them of ways to manage drug usage.

That was the case for Imperial Oil's Nanticoke refinery, which had an
impressive 15-year history of being drug free, established by randomly
subjecting employees to urinalysis. That came to an abrupt halt in
2000 when Martin Entrop successfully challenged the company's
drug-testing policy, and the policy was struck down by the court.
While urinalysis confirms the presence of drugs, it cannot not
pinpoint when the drug was consumed. Nor can it reveal the level of
impairment at the time of testing. Therefore, it was unable to confirm
the employee was unfit to work.

In its search for a superior test, Imperial Oil discovered the buccal
test, which can reveal the absolute level of cannabis in the body at
the time of testing.

The company could now safely conclude that a positive test proved
impairment at the time of the test and that the employee posed a risk
to the public, the environment, fellow employees and himself.

Imperial Oil resumed drug testing in July, 2003. Again, not a single
employee tested positive. The test was the perfect solution, until
Imperial Oil's drug testing suffered another fatal blow last December
when the Labour Board deemed it an invasion of privacy. The Labour
Board recommended employers "supervise" employees.

At a construction site in Toronto, Wayne Wagner, a supervisor with
ThyssenKrupp Elevator did just that. He suspected drug use when Mike
Chevalier, an employee, failed to wear a safety harness and glasses,
wore his hard hat backwards, looked dazed and avoided the lunch
trailer in favour of his buddy's truck. With a video camera in hand,
hidden in an adjacent truck, behind a smoke-coloured window, Wagner
and his boss taped Chevalier and his buddy, Blaine Thurston, engaging
in activity strongly resembling smoking marijuana during the lunch
break. Consequently, Chevalier and his buddy were fired.

ThyssenKrupp was confident the videotaped evidence would confirm the
firings were justified. But the company was prevented from using the
tape. The Labour Board said videotaping was an invasion of the
employees' privacy. Employees have the right to expect privacy in
their own vehicle in a public parking spot, and that privacy should
have been honoured, the board said, adding ThyssenKrupp had every
opportunity to observe the employees on the job. Only then should it
have made a determination as to whether or not they were working
properly and safely.

Canadian employers intent on taking proactive steps to ensure a
workplace free of drug impairment should consider the following: - The
deterrent value of a strong drug policy remains valuable; - Certain
testing is permitted in safety-sensitive environments when there is
reasonable cause to undertake such tests and the tests are as
unobtrusive as is possible; - For employees in non-safety-sensitive
positions, supervision of employees is to be employed; - Monitoring of
the employee in public is permissible, but not in places where
employees have an expectation of privacy; - Surveillance of an
employee must be motivated by reasonable grounds; and - Surveillance
should be used only as a last resort.

Howard Levitt, counsel to Lang Michener LLP, is author of The Law of
Dismissal in Canada and The Quick Reference to Employment Law, and
editor-in-chief of The Dismissal and Employment Law Digest.