THE MARKETPLACE CAN DO ITS OWN DRUG CONTROL

The National Post's recent front page article, "CEOs Fear Reefer Madness,"
provides yet another compelling example of how one bad government policy
reinforces others.

The Canadian Council of Chief Executives (CCCE), a group comprising the
CEOs of many of Canada's largest businesses, has expressed concerns that
proposed federal legislation relaxing marijuana laws might reduce safety
and productivity in the workplace.

It's a valid concern. Nobody likes to think that the crane operator on a
construction site, the factory worker assembling automobile brakes or the
bank employee entering financial data might be high on marijuana. But the
solution is not to oppose the decriminalization of marijuana and continue
penalizing people for their recreational activities. It's to ensure that
people under the influence of marijuana can be weeded out (pardon the pun)
of the workplace. Unfortunately, Canadian law severely hinders employers
who attempt this.

According to the Canadian Human Rights Commission (CHRC), "The Canadian
Human Rights Act prohibits discrimination on the basis of disability and
perceived disability. Disability includes those with a previous or existing
dependence on alcohol or a drug. Perceived disability may include an
employer's perception that a person's use of alcohol or drugs makes him or
her unfit to work."

In other words, employers who suspect an employee of being incapacitated by
drugs during working hours cannot fire that person even if the employer's
suspicions could be proven true.

Some companies, including Imperial Oil Limited and the Toronto-Dominion
Bank, tried in the 1990s to implement drug-testing policies for their
employees but found themselves hauled into court, charged with
discrimination and human rights violations. Although the resulting court
rulings are complicated to interpret, employers quickly got the message
that they'd better not even think of requiring drug tests.

Such tests are flawed, opponents argue. They sometimes produce false
positives. They may indicate that marijuana use occurred two weekends ago,
but not that a worker is actually stoned at work. These arguments have some
merit, but employers are intelligent enough to understand the, too. Few
would be so irrational as to summarily dismiss an otherwise valuable
employee on the basis of one failed drug test without looking into the
matter further. It's simply bad business. There are costs involved in
recruiting and training replacements, and the new worker may well turn out
to be less satisfactory than the old.

Besides, according to the formulation of the law by the CHRC, even if we
had much more sophisticated tests that could demonstrate on-the-job
impairment with 100% accuracy, employers still wouldn't be able to fire the
employees exposed as druggies. That would be discrimination against someone
with a perceived disability. Shame, shame!

What an extraordinary country this is, where we don't mind dissuading
people from using drugs by threatening them with the loss of their liberty,
but we forbid dissuading them from using drugs by threatening them with the
loss of their jobs; where we'll spend endless amounts of public money
trying to ferret out the identities of drug users so we can throw them in
jail to vegetate, but prohibit the expenditure of private money so that we
can have safe workplaces and products.

One red herring that continually surfaces in this discussion is the notion
of mandatory drug testing. Compulsory drug testing imposed by the
government would be an intolerable violation of citizens' civil liberties
but that's an entirely different matter. When a private sector employer
requests drug testing as a condition of employment, it's simply a matter of
contract negotiation, not coercion. If the employee doesn't agree, he
continues his job search elsewhere.

Ultimately, the marketplace will impose its own discipline on employers who
overstep acceptable boundaries of intrusiveness. Job candidates who are
generally incensed by the indignity of drug testing will prefer to work for
employers who don't demand it. Employers who insist on testing may lose
valuable employees to their competitors who don't test.

On the other hand, if most people really don't mind being tested, then the
ones likely to quit a testing employer will be those who actually use
drugs. The freedom for employers to request such tests could ultimately
prove to be a more powerful disincentive to drug use than the criminal law
has been.

The marketplace can also be the ultimate arbiter on the question of whether
drug use affects job performance sufficiently to warrant testing. Some
employers will gamble that it does; they will go to considerable expense
testing all employees, and replacing or getting treatment for those who
test positive. Other employers will gamble that it doesn't; they'll save
themselves the expense of testing, firing and treating, but will end up
with some drug users on their payrolls.

If drug users goof up a lot, the firms that didn't test will become less
profitable than their competitors who did. On the other hand, if the cost
of testing, firing and treating outweighs the cost of goof-ups, firms that
test will become less profitable. Either way, financial incentives will
push employers in the right direction.

What's needed is for influential groups like the CCCE to take a principled
stand against bad legislation like the Canadian Human Rights Act, instead
of being manipulated into supporting other bad laws like the prohibition of
marijuana.