DRUG TESTING OF EMPLOYEES RULED ILLEGAL

Canadian employers are free to impose random alcohol tests on their
workers, but drug testing contravenes the law, according to a landmark
ruling on employee privacy rights released yesterday by the Ontario Court
of Appeal.

The province's highest court says companies that wish to ensure safety in
their workplaces can carry out Breathalyzer tests on employees and job
applicants. But demanding urine samples for drug tests is a violation of
human-rights law and scientifically ineffective.

The decision stems from an appeal by Imperial Oil Ltd. of a 1996 ruling by
the Ontario Human Rights Commission, which said the company's drug and
alcohol testing policy was illegal. Yesterday's decision comes from the
most senior provincial court to examine the issue. Its findings are
expected to guide workplace practices across the country.

"This is a clear and huge victory for the Ontario Human Rights Commission,"
said Marvin Huberman, the agency's lawyer. "There are a great number of
companies that were very cautious in how to proceed. This now clarifies the
law."

Although drug and alcohol testing is more common in the U.S., Canadian
companies have been slow to embrace the practice in the face of stricter
human rights codes. Canada's Federal Court of Appeal dismissed an effort
two years ago by the Toronto Dominion Bank to test employees for drug use.
Since then, other companies have been awaiting the Imperial Oil judgement
before implementing their own policies.

In 1992 Imperial Oil imposed alcohol and drug testing on employees at two
Ontario refineries. Its policy required Martin Entrop, a control board
operator in Sarnia, Ont., to reveal that he suffered from alcohol abuse in
the early 1980s. Mr. Entrop had not had a drink for seven years, but
because he worked in a "safety-sensitive" area -- where impaired
performance could lead to catastrophe -- he was removed from his job and
given another position at the refinery.

Although Mr. Entrop was eventually reinstated, he complained to the Human
Rights Commission. Alcohol or drug addiction is considered a "handicap" in
human rights law, and Mr. Entrop said Imperial Oil discriminated against
him because of his handicap.

The Commission upheld Mr. Entrop's complaint and decided that Imperial
Oil's policy breached the Ontario Human Rights Code. The agency also
awarded Mr. Entrop more than $21,000 in damages, partly for the "mental
anguish" the agency said Mr. Entrop had suffered through the affair.

The Ontario Divisional Court upheld the Commission's findings, and Imperial
Oil appealed what had become one of the most important drug-and-alcohol
testing cases in Canada, to the Ontario Court of Appeal.

In a unanimous decision, three appeal judges ruled yesterday that the
Commission did not have the jurisdiction to expand Mr. Entrop's case into
an inquiry about Imperial Oil's drug testing provisions. However the Court
of Appeal decided to address the issue of drug testing anyway.

It said that both drug and alcohol tests are discriminatory in theory.
However, for people who hold sensitive jobs -- from refinery workers to
train operators to airline pilots -- the court said there are cases where
mandatory testing can be justified.

"Imperial Oil has the right to assess whether its employees are capable of
performing their essential duties safely," writes Mr. Justice John Laskin.
"An employee working in a safety-sensitive position while impaired by
alcohol or drugs presents a danger to the safe operation of Imperial Oil's
business."

The court said a breathalyzer test can accurately measure impairment, and
therefore alcohol testing is an acceptable practice. But because urine
tests show only the presence of drugs in the body, but do not measure
impairment, drug testing is unjustified.

"You could have smoked a joint of marijuana on a Friday night and go to
work on Monday completely unaffected by the drug," says Mr. Huberman.
"There's no correlation between a positive drug test result through urine
and impairment in your job. That's not the case with a breathalyzer."

The issue is important for the Canadian Civil Liberties Association, which
had intervened in the case against Imperial Oil. The association does not
oppose alcohol testing, says its lawyer Alan Borovoy, because breathalyzer
tests reveal nothing about an employee but blood alcohol levels.

Urine samples are not only ineffective, he says, they contain an array of
information about their owner. "A urine test represents a gratuitous
invasion on the privacy of employees," Mr. Borovoy says.

The court also condemned Imperial Oil for demanding that employees disclose
past drug or alcohol abuse and following such disclosure, automatically
reassigning them to other jobs. It also upheld Mr. Entrop's damages award,
saying Imperial Oil "wilfully and recklessly" infringed on his rights.

The company had little to say yesterday except that its lawyers were
studying the judgement.

"We are pleased that in the broadest sense the court ruling has affirmed
the appropriateness of random alcohol testing," said spokesman Richard O'
Farrell. "Imperial believes its current policy is necessary and reasonable
to minimize safety risks to employees and to the public.