SETTING LIMITS ON DRUG TESTING

Employers Say It Is a Matter Of Substance Abuse. Employees Call It an Abuse
Of Civil Liberties. As Alberta Considers Legislation On Mandatory Drug
Testing, The Need For Workplace Safety Will Clash With The Basic Right To
Privacy

A few hours earlier, Phyllis Roberto had just been doing her job. Now, she
was being led down a foul-smelling hallway in one of the seediest hotels in
Edson by three men.

She couldn't really see -- her eyes were stinging and blurry and the skin
around them was red and swollen after being sprayed with a chemical glue
during an accident at the Weyerhaeuser mill in the town, located about 205
kilometres west of Edmonton.

Roberto, a mid-40s mother of five and a technician at the mill, was tired,
confused, in pain and, increasingly, humiliated.

Roberto was being taken for a drug test -- standard procedure after
workplace accidents at Weyerhaeuser, the international forest products
giant that employs 55,000 people in 18 countries.

"I could hear people laughing in the hallway and I thought, 'I wonder if
they know,' " she recalls. "I looked pretty rough, like I'd had a rough
night and it was ending even rougher."

It was February 2003 and Roberto had been unhooking a heavy metal hose on
top of a railway tank car full of chemical glue. Toward the end of her
overnight shift, a blast of the material sprayed out of the tank car,
hitting Roberto in the face and knocking off her safety glasses.

Fellow workers took her to the hospital. About 7:30 a.m., after an eye
exam, Roberto headed home to sleep. Several hours later, she was awakened
by phone and told she had to have a drug test to see if she was impaired
when the accident happened.

When Roberto questioned the need for such a test, she was informed she'd be
suspended without pay if she refused, or with pay if she co-operated and
took the test. She would remain suspended until the results came back
several days later.

"It didn't feel like I had much of a choice," says Roberto, secretary of
Local 447 of the Communications, Energy and Paperworkers Union of Canada (CEP).

Roberto expected the test would be done in a clinic setting. Instead, she
found herself in a cheap hotel room with two Weyerhaeuser managers, her
union representative and another man who was to collect the urine sample.

"The hotel room smelled like urine and stale cigarettes and old booze and
vomit and things like that kind of hotel smells like," she recalls.

Roberto was told to go into the bathroom and produce a sample while the
four men sat in the other room, able to hear her urinate. But she couldn't
pee enough. Finally, she sat on the bathroom floor and cried.

Though she tested negative, rumours circulated around Edson that she might
be a drug user -- her teenage daughter was teased by peers who had heard
about the test. Over the next few weeks, she experienced bouts of
uncontrolled and unexplained crying, insomnia, nightmares and agitation. In
the spring of 2003, she began counselling and was advised to take a leave
from work because she was suffering from post-traumatic stress disorder.

Roberto was unable to go back to work until the end of August. The
Weyerhaeuser short-term disability plan only covered her pay for two weeks,
and she was without income for 21/2 months. In a grievance filed through
her union, Roberto is seeking compensation from Weyerhaeuser for her lost
wages, pain and suffering. The application before the Labour Relations
Board was completed in November 2003, but a decision has not yet been
handed down.

In the meantime, Weyerhaeuser public affairs manager Sarah Goodman says
policies in Edson have been changed so workers can be tested in a "clean
and appropriate place where someone will feel comfortable."

Roberto acknowledges her experience with workplace drug testing might be
more negative than most. But her story illustrates something she thinks is
very important.

"Innocent people can and will be hurt if drug testing is not handled
carefully," she says.

Roberto's experience offers a cautionary tale and poses difficult questions
that employers, employees and the Alberta government must confront,
especially now that the province is considering a legislative framework for
mandatory drug and alcohol testing in the workplace.

In June, Clint Dunford, the minister of human resources and employment,
predicted that within five years the province would have laws to define an
employer's right to test employees for drug and alcohol use. The province
needs to act, Dunford said, to deal with the increasing problem of people
showing up for work drunk or drugged, a health and safety issue, especially
on construction and industrial sites.

If Dunford proceeds as planned, Alberta -- with a workforce of more than
1.7 million -- would be the only province to set up laws on drug testing.

"I know it's going to be hugely controversial, but at some point we've got
to deal with impairment in the workplace," Dunford said.

It's hard to know how many Canadian workplaces test for drugs.

Penny Colbourne, director of Dynacare Kasper's substance abuse testing lab
in Edmonton, says the company has about 4,000 clients across Canada who
test employees for drugs and alcohol.

In the United States, drug and alcohol testing in the workplace is common.
An estimated 49 per cent of full-time workers between the ages of 18 and 49
are subject to some type of workplace testing, up from one per cent in 1983.

In Alberta, the push for new laws on drug and alcohol testing comes from
industry. Representatives of the oil and gas and construction industries
say impairment on the job compromises safety. But privacy advocates, human
rights experts and union officials caution that drug tests are a potential
violation of employees' rights, an intrusion on privacy and of questionable
safety value.

New laws may not only violate the provincial human rights code, they also
may run counter to the Canadian Charter of Rights and Freedoms, which has
two relevant sections -- one protecting against unreasonable search and
seizure and another which says citizens must not be deprived of life,
liberty or security of person.

As it stands, employers in Alberta already could be overstepping their
legal boundaries when it comes to drug and alcohol testing. Pre-employment
testing, which requires that potential employees take a drug and/or alcohol
test before being hired, is common in the oil and gas industry, even though
it is discouraged by human rights legislation across the country.

Oil industry executives are aware their policies could be challenged.

"The case law is on shaky ground and we'd acknowledge that," says Kevin
Smith, Suncor's director of human resources and legal affairs.

In a policy statement issued in 2002, the Canadian Human Rights Commission
noted that pre-employment drug and alcohol testing, as well as random drug
testing, was unacceptable because the procedures cannot be linked to bona
fide requirements of the job.

Repeatedly, human rights policies and court rulings alike have emphasized
that not only do drug and alcohol tests discriminate against people with
addictions who should be helped rather than fired, the tests are also not
effective in measuring the impact of drug use on job performance. Drug
tests don't determine impairment, how much was used or when; they only show
some degree of past use.

Under special circumstances, judicial and quasi-judicial bodies have
allowed alcohol and drug testing in the workplace. But they have required
employers to prove the tests were a bona fide job-related requirement and
dealt with a specific problem.

Ottawa lawyer Eugene Oscapella, a privacy expert and a founding member of
the Independent Drug Policy Research Group, says the drive to drug testing
is wrong-headed.

"I don't know if it should be the role of employers to act as the police
agent for the state, which is in effect what they're going to do. We don't
need that sort of moralizing at the corporate level.

"The issue is: Is there a problem? Let's get the facts before we start on
this highly intrusive thing. There are very few situations where we allow
the state or others to intrude into our private lives to that extent. That
is an extremely intrusive action, forcing someone to urinate."