WORKERS TO FACE DRUG TESTS

Legal Experts Say Policy Is Unconstitutional

A new drug-and-alcohol policy that requires unionized construction
workers in B.C. to be tested before being hired and after they've been
involved in an accident likely won't withstand a legal or human-rights
challenge, legal experts said yesterday.

Workers must agree to be tested for alcohol and nine drugs, including
marijuana, when they're hired by a company and periodically afterward,
according to an agreement between employers and unions.

"We have tried to provide as safe a workplace as we can," said
industry spokesman Clyde Scollan. "We have both a moral and legal
obligation to do so."

Concrete finisher Wyatt Guignard, 23, said he welcomes the new testing
rules because it provides for a safer workplace on construction sites
where he or a co-worker would be responsible for operating heavy,
dangerous equipment.

"As a non-drug-and-alcohol user, I think it's good," he said. "There
are no negatives."

Mandatory employee drug testing is illegal in Canada because it
discriminates against drug-dependent candidates under human-rights
laws because addiction is defined as a disability.

Scollan said the policy was agreed to by unions, unlike a similar one
in Alberta.

He also said the testing isn't mandatory because "some people will
choose not to work there [at the unionized shops subject to testing]."

But Kelowna labour lawyer Robert Smithson said those arguments
wouldn't hold up at a human-rights tribunal.

"The golden rule of negotiated labour agreements is that you cannot
contract out of human rights laws," he said.

"There would be a lot of lawyers willing to take the case. And I
expect it to be tested."

Micheal Vonn of the B.C. Civil Liberties agreed: "You can't contract
out your constitutional rights or your human rights. Random drug
testing of workers is never justified."

Last year, however, an Alberta court upheld a labour arbitrator's
ruling that Petro Canada was justified in testing its employees for
drugs with two months' notice at an oilsands construction site in 2004.

Scollan also noted B.C.'s policy makes a point in post-accident
testing of gauging only "current impairment" of THC, the active
ingredient in marijuana that can show up in urine tests for weeks.

Workers then must submit to a blood or saliva test, which Scollan said
can pinpoint consumption to within hours.

"The objective is to ensure sobriety on the job without prying into
the private after-hours activities of workers," said a joint press
release signed by Scollan and Mark Olsen for the labourers union.

"We opted for a non-invasive testing policy, which is designed to
measure possible current impairment on the job, not what you did last
week," Olsen said in the release.

But Smithson and Vonn said they are unaware of technology that could
determine when drugs were consumed.

"This is precisely the stumbling block for allowing drug testing in
the workplace," said Smithson.

Vonn also said such tests "are predicated on the fact that what's
causing safety concerns is employees' impairment. We would like to see
some evidence of that."

Scollan said he didn't have any concrete numbers because privacy laws
prevented the collection of such data, but said anecdotal evidence
indicated that workplace drug-related accidents in Alberta dropped
after testing was allowed there.

A WorkSafe BC spokesman said it doesn't have the authority to order
such tests.

Under the new policy, a worker who tested positive would be
immediately taken off the job and won't be able to return until he or
she gets the all-clear from an addictions doctor and agrees to any
required treatment or counselling. And the worker would be subject to
follow-up testing for two years.