WORKPLACE DRUG-TESTS BECOME HARDER TO REFUSE

EDMONTON - 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, Alta., 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,
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.

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 covered her pay only 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.

Meanwhile, Weyerhaeuser public affairs manager Sarah Goodman says
policies 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 government must confront,
especially now that Alberta is considering a legislative framework for
mandatory drug and alcohol testing in the workplace.

In June, Clint Dunford, the province's minister of human resources and
employment, predicted that within five years Alberta would have laws
to define an employer's right to test employees for drug and alcohol
use. The government 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."

In British Columbia, the government is not currently looking at
creating laws to define employers' rights to test workers for drugs
and alcohol use, says Graham Currie, spokesman for the Ministry of
Skills, Development and Labour. "It's not something that is under
consideration in B.C," he says.

Whether or not laws are enacted, workplace drug-testing is becoming
more commonplace. It's hard to know how many Canadian employers test
for drugs.

Dr. 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 Canada, the push for new laws on drug and alcohol testing comes
from industry. Representatives of Alberta's 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.

Syncrude spokesman Randy Provencal agrees the whole area is a bit
grey.

"What industry is looking for is clarity here," he says. "When you are
seeing court tribunals ruling in diametrically opposite ways, it sends
a mixed message. Where do we go from here?"

At first blush, human rights laws are confusing, complex and subject
to various interpretations.

The present system has been established from a loose and
often-changing set of rules created by the courts, human rights
tribunals, and federal and provincial human rights codes, plus
negotiations and arbitrations between unions and employers.

Organizations covered by the Canadian Human Rights Act include
federally regulated industries such as banking and airlines, and the
federal government. Provincial human rights acts cover everybody else,
and both systems offer similar protections. The federal and provincial
systems are complaint-driven; if nobody complains, violations continue.

In Canada, employees who test positive for traces of drugs can be
considered addicts who are disabled, and that triggers protection
under Canadian human rights laws. Employers must make reasonable
accommodations for the disabled individual. In the case of addictions,
this can mean sending employees for treatment at company expense.
Employees who test positive must be brought back to work after they
take treatment and test negative for drug and alcohol use.

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.

It follows, legally speaking, that if the procedures can't be linked
to essential requirements of the job, drug and alcohol tests can be
intended only to weed out people with the disability of addiction,
which is not allowed.

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.

Other companies, however, have had to dismantle drug and alcohol
testing programs after challenges by employees.

In 1998, the Federal Court of Appeal ruled the Toronto-Dominion Bank's
workplace drug testing policy unlawfully discriminated against people
who are dependent on drugs. The policy had insisted on both
pre-employment testing and testing after employment on the grounds the
bank had to worry about not only the impact of drugs and alcohol on
workplace performance, but the security of funds and the public
perception of the link between illegal drug use and criminal activity.

But the bank failed to persuade the court. Indeed, the human rights
tribunal which preceded the federal appeal noted that of 57 incidents
of theft by bank employees during an 18-month period, none was linked
to drug use.

The Toronto-Dominion Bank no longer conducts any drug or alcohol
tests, said a representative.

The costs of contentious policies on drug and alcohol testing are more
than monetary. Employees say being put through a drug test affects
their personal lives and their feelings about their employer, whether
or not the employee tests positive for a banned substance.

Scott McKay, an electrician from Miramichi, N.B., was concerned about
his reputation when he had to take a drug test in April 2003 after
needing two stitches for a cut to his thumb. McKay says his employer,
Weyerhaeuser, told employees that drug testing would only be for major
incidents when it brought in the policy in January 2003.

Weyerhaeuser spokeswoman Sarah Goodman confirms this. "We do tests for
cause and for those involved in an accident with the potential to
cause significant bodily harm to themselves or others."

McKay wonders how a small cut to the thumb qualifies as "significant
bodily harm" and says the minor accident had the potential to severely
damage his reputation.

Though drug tests are supposedly confidential, everyone on a job site
knows when one has been ordered. In McKay's case, it took more than
two weeks for the tests to come back negative, and in the meantime, he
felt people were looking askance at him. "What bothers me about drug
testing is that people come out and make their own conclusions,
whether or not they know the whole story. All they know is that Joe
was sent for a drug test and so obviously he must have looked as if he
was drunk or on drugs."

Ledcor, a major Canadian construction firm, follows the Canadian model
for drug and alcohol testing and asks for samples from employees after
accidents and when there is probable cause.

Like others interviewed for this article, Dwight Bissette, the
Vancouver-based director of health, safety and environmental
protection for Ledcor, said experience, not science, tells him there
is a problem that drug testing could help solve. He says that on some
job sites in Oregon and California, where Ledcor has offices,
pre-employment and random testing has seen seven of 10 employees fail,
indicating a problem.

But Bissette says the biggest reason for workplace accidents and
injuries is not drug or alcohol use, but inexperience -- young workers
new to a job who don't get enough training with a foreman.

Edmonton's Brad Anderson, head of the Construction Owners Association
of Alberta, quotes a 2001 Cornell University study that shows an
average reduction in injury rates of 51 per cent in the two years
after drug testing is introduced. "We feel addressing the drug and
alcohol issue is imperative in getting to the next significant
reduction in injuries."

Dunford says it's "unknown" whether alcohol or drugs are causing more
accidents in provincial workplaces. "I don't have any empirical
evidence as to what the incident rate is."

Regardless, employers say that even if only a small number of people
use drugs or alcohol at work, there is big potential for problems,
particularly in safety-sensitive positions and industries.

"If someone is not alert or is impaired in any way, shape or form, all
it takes is someone who is inattentive pushing the wrong button," says
Syncrude's Provencal. "It can impact hundreds if not thousands of
lives. It's of paramount concern that we provide a workplace that's
safe for everyone."

Nobody would argue with that, but what causes controversy is whether
drugs and alcohol cause problems to a degree that justifies widespread
drug and alcohol testing.

Murray Mollard, a lawyer with the British Columbia Civil Liberties
Union, says employers have an "important and legitimate interest and
responsibility in making sure workplaces are safe and all the more in
safety-sensitive positions."

"The next question is, how do you do that? That's where we begin to
disagree about whether drug testing is the appropriate means to do
that. From our point of view, it isn't."

Lawyer Barbara Humphrey says the recent criminalization of labour
infractions in Canada has also made employers nervous. In November
2003, the Criminal Code of Canada was amended to create criminal
offences for companies and individuals who fail to protect workers and
the public.

Indeed, Suncor's Smith notes his company's policy is motivated by more
than a regard for safety. "We feel that to take our responsibility for
safety, all employees should have a pre-employment drug test that not
only screens employees, but sends a message that we are a company that
is very serious about safety, and coming to work in a fit condition to
perform work is something we insist on."

But Ottawa lawyer Eugene Oscapella, a privacy expert and a founding
member of the Independent Drug Policy Research Group, says that
attitude 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."

TRAIL OF ABUSE

Here are some of the substances that urine tests will detect and the
length of time the substances are likely to remain in the system after
they've been used. The times are approximate and vary depending on the
individual, their pattern of drug or alcohol use and other factors:

Amphetamines: one to two days

Cocaine: two to four days

Marijuana: one to seven days (occasional use); one to four weeks (chronic
use)

Opiates: one to two days

Phencyclidine (PCP): one to eight days (occasional use); up to 30 days
(chronic use)

Alcohol (breathalyser): two to 14 hours.

Source: Dynacare Kasper