WORKPLACE DRUG TESTS: TO PEE OR NOT TO PEE

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