Sunday 6 January 2013

Safe Workplace versus Privacy and Human Rights; Companies push for random drug, alcohol testing

Two cases in Canada pit workplace safety against employee privacy and dignity


Two current high-profile legal cases, in which companies want to implement random testing of their employees for alcohol and/or drugs, may determine whether such testing expands in Canadian workplaces. At the centre of both cases is the need for a safe workplace versus privacy and human rights.
In New Brunswick, Irving Pulp and Paper wants employees at its mill operations to undergo random alcohol tests but the Communications, Energy and Paperworkers Union (CEP) is opposed. On Friday the case reached the Supreme Court of Canada.
In Alberta, Suncor Energy is trying to bring in a random drug and alcohol testing program for employees and contractors at its oilsands operations in Fort McMurray. The CEP is resisting Suncor's efforts, with an arbitration hearing that was scheduled for today postponed until Jan. 2.
The Supreme Court of Canada is reviewing a case which will determine whether Irving Pulp and Paper can implement a random alcohol testing program at its mill operations in New Brunswick.
The Supreme Court of Canada is reviewing a case which will determine whether Irving Pulp and Paper can implement a random alcohol testing program at its mill operations in New Brunswick. (Blair Gable/Canadian Press)
Calgary lawyer Birch Miller, who specializes in this area of law, writes that these cases will indicate "whether random alcohol and drug testing policies have a future in Canada."
Random drug testing arrived in Canada from the U.S., first for cross-border commercial truck and bus operations, as required by the U.S. government. In the U.S., where drug testing is federally regulated, random testing is prevalent everywhere, according to Peter Deines of CannAmm Occupational Testing Services, the largest occupational drug testing company in Canada.
Although they do have some clients in the U.S., as a Canadian company CannAmm can only long for the business opportunities in the U.S.

Random drug testing much more prevalent in U.S. than Canada

Drug testing is prevalent in only a few industries in Canada. In an addition to cross-border transport, there's energy production, heavy industrial construction, potash and industrial engineering, Deines explained in an interview with CBC News.
Peter Deines of CanAmm Occupational Testing Services says that drug testing is prevalent in only a few industries in Canada but is prevalent everywhere in the U.S.
Peter Deines of CanAmm Occupational Testing Services says that drug testing is prevalent in only a few industries in Canada but is prevalent everywhere in the U.S.(Gregg Ingram/Courtesy CanAmm)
He explains that in Canada the testing is mostly limited to "very safety-sensitive oriented workplaces," whereas in the U.S. there is no similar safety limit. Even in retail, financial, manufacturing, education, and health, American workers undergo random drug testing.
"The amount of testing Wal-Mart does in the United States greatly exceeds the entire number of tests that are done in the Canadian market," Deines says.
In the U.S. companies say they test for reasons other than safety — to identify theft risk, employee reliability, improve productivity — while in Canada the courts have only accepted workplace safety as a legitimate reason to do drug testing.
"The tradeoff in Canada is between the privacy and human rights element and the duty to provide a safe workplace," Deines explains.

Drug and alcohol testing 'discriminatory'

The Canadian Human Rights Commission, which is appointed by Parliament, says in a policy paper on alcohol and drug testing that, "drug and alcohol testing are prima facie discriminatory."
Alcohol or drug dependence, whether past or current, is considered a disability. Canadian law prohibits discrimination on the basis of disability.
The Commission adds that "discrimination based on the actual or perceived possibility that an individual may develop a drug or alcohol dependency in the future" is also prohibited.
However, "employers can justify discriminatory practices and rules if they are a bona fide occupational requirement."
Employers can test for drugs or alcohol when there is reasonable evidence of substance abuse, after an accident or incident where the employee's role may have been a contributing factor, and as follow-up testing after treatment for drug abuse.
The conundrum under Canadian law involves random testing.
The Commission accepts that truckers and commercial bus drivers can be subject to random testing. In other industries, important factors in determining if random testing may be done include whether employees are under direct supervision; whether less invasive alternatives exist to "determine whether employees in safety-sensitive positions are impaired on the job;" evidence of high incidence of drug use on the job; and if the employer has a rehabilitation program in place.

Drugs tests don't determine impairment

The Commission also draws a distinction between random testing for drugs versus alcohol. Noting that drug tests cannot measure whether a person is "under the influence" at the time of the test but only detect past drug use and not "whether that person is impaired at that moment, or is likely to be impaired while on the job."
Suncor wants to implement random drug and alcohol testing for employees at its oilsands facility near Fort McMurray, Alta.
Suncor wants to implement random drug and alcohol testing for employees at its oilsands facility near Fort McMurray, Alta.(Jeff McIntosh/Canadian Press)
Therefore, the Commission argues that "random drug tests cannot be shown to be reasonably necessary to accomplish the goal of ensuring that workers are not impaired by drugs while on the job." Also, requiring a drug test "as a condition of employment may be considered a discriminatory practice on the ground of disability or perceived disability."
Deines looks at the Canadian numbers for post-incident and reasonable cause testing and sees a problem. When testing in reasonable cause situations the results turn up positive about 30 per cent of the time. Deines explains that "because there are so many factors in the worksite, it's difficult to prove causality, but what you notice is a very high correlation between incidents and drug and alcohol abuse."
CannAmm reports that "[r]andom drug and alcohol testing has emerged in Canada as the most effective safety compliance tool in ensuring employee fitness in safety sensitive roles."

Opposition to random testing

Abby Deshman, a lawyer with the Canadian Civil Liberties Association, argues that random testing "imposes a privacy-invasive, dignity-invasive regime on a large number of people without any real proof that these people are going to pose a threat to workplace safety," adding that "there's very little evidence that it does actually work as a deterrent."
(The CCLA is an intervener at the Supreme Court in the Irving case.)
Abby Deshman, a lawyer with the Canadian Civil Liberties Union, considers random drug testing 'privacy-invasive and dignity-invasive' for employees.
Abby Deshman, a lawyer with the Canadian Civil Liberties Union, considers random drug testing 'privacy-invasive and dignity-invasive' for employees. (Courtesy Abby Deshman)
Deshman is especially concerned when companies say they want to bring in random testing "in the name of workplace safety without actually having any evidence that there's a problem in the workforce, or having an analysis that this is actually going to improve workplace safety."

Although the CHRC notes the difference between alcohol and drugs random tests, Deshman argues "some justification for the intrusion into worker dignity and privacy" is still needed.
"Can you actually show us that there's an alcohol problem in the workplace, can you show us this policy is the best and least intrusive way of addressing those concerns and if these are questions that haven't been asked and answered…, then you shouldn't be intruding on employee privacy and dignity without it."
Deshman told CBC News she wants Canadian society "to critically reflect on workplace privacy violations even when they're done in the name of workplace safety and really demand we know exactly why they are being put in place, that there's a really good rationale, that it really does increase workplace safety and not just defer to a general assertion that this is a dangerous job and we need to take all precautions."
The jurisprudence in Canada is anything but definitive on random testing but the Irving and Suncor cases are expected to add some clarity. Meanwhile, other possible cases loom.
The Toronto Transit Commission wants to bring in random drug and alcohol testing and the Canadian Forces want to greatly expand the number of troops subject to identifiable random drug testing, rather than just the anonymous testing program currently in place.
For Deines and Deshman, both workplace safety and the dignity and privacy of employees must be considered.

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Posted: Dec 10, 2012 7:58 AM ET 

Last Updated: Dec 10, 2012 3:57 PM ET 

7 comments:

  1. First off, I’d like to quote Article 12 of the Universal Declaration of Human Rights. This states “No human shall be subjected to arbitrary interference with their privacy, family, home or correspondence, not to attack upon their honour and reputation. Everyone has the right to the protection of the law against such interference or attacks” (Scholes, 2009)
    In response to this blog, we are looking at whether or not drug testing is relevant and if it is a violation of an employee’s privacy. As above, everyone has the right to their own privacy. An employer/employee relationship is purely contractual. The employer should not be privy to any information that is not relevant to the contract.
    Drug testing gives an employer insight into the employee’s life outside of work, this is violating the employees right to privacy, as what they do in their own spare time is their business and not that of the employers.
    Originally drug testing was done for safety, however now it is done for many other reasons. As stated in the blog, US companies are testing to identify theft risk, employee reliability and to improve productivity.
    In the employer/employee contract it is usually stated that a minimum standard of productivity is met. It is irregular to state that this standard must be the maximum productivity the employee is capable of. Therefore, even if the employees were tested for drugs, and some were found to be positive, this does not mean they will be so unproductive that they will fall below the minimum standard of productivity.
    A drug test only measures the level of drugs in a person’s system. It does not tell you if they are currently impaired by drugs, or how impaired they are. So the employee’s privacy will be violated as the employer has requested information that is irrelevant to their relationship.
    I believe that drug testing should not be used as it is currently done so in the US.
    However, in Canada, testing is primarily done in safety-sensitive oriented workplaces.
    If the occupation has a clear and present potential for harm then yes, there is some justification for drug testing. Although, this should be limited to employees where there is some risk that they may succumb to drug abuse. For example, an employee who has been with the company for 20 years and has an exemplary record should not need to be drug tested as this would be invading his/her privacy, and there is no justification for it. But if there was an employee who has recently been displaying erratic, different behaviour then these may be signs that the employee is taking drugs.
    As Abby Deshman says, random testing “imposes a privacy-invasive regime on a large number of people without any real proof that these people are going to pose a threat to workplace safety” and “there’s very little evidence that it does actually work as a deterrent”
    The question we should now be asking ourselves is whether or not drug testing in jobs where there is potential for harm is the most effective way of preventing said harm.
    Administering a drug test, waiting for results to get back and then taking action can take days. If someone is on drugs, and could potentially be causing harm in the workplace then this could quite easily happen between the time the test is taken and when they get the results back. This would then mean that the drug test did not prevent harm, it maybe explained the reason for it, but it did not prevent it. Which in turn, makes it unjustified.

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  2. **continued**
    A better option perhaps would be to administer behavioural or dexterity tests before the employee undertakes potentially harmful components of their job, if you suspect that they may not 100% up for it. The results from that would be instant, it would also cost the company less money and there would be no invasion of the employee’s privacy as you are directly getting the information relevant to the job.
    In conclusion, I believe there is definitely no relevance for drug testing in the workplace in regards to productivity, as is done in the US.
    I also believe that there is little justification for drug testing in occupations where employees can cause potential harm as there are more economical, ethical and effective options out there to test whether or not someone is too impaired to do their job.

    Bibliography
    Desjardins, J., & Duska, R. (2001). Drug Testing In Employment.
    Scholes, V. (2009). 71203 Business Ethics. Lower Hutt, NZ: The Open Polytechnic of New Zealand.

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  3. Random drug testing is simply unfair. It's a blatant invasion of privacy and really needs to be more structured by employers who elect to use such tactics in the workplace. The only time it workplace drug testing should be used is when there is obvious signs of on the job drug use or for insurance purposes in the case of accidents on the job.
    http://www.passadrugtestfast.com

    ReplyDelete
  4. It is ideal to have a company where employees are all clean from both illegal substances and abuse of alcohol intake. Although employees have the right to refuse being tested, it is encouraged that they partake in the screening process. A clean company will mean the quality of work done is promising.

    Sabrina Richardson @ USA Fact

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  5. So the big question is how can we test for drugs without invading someone’s privacy and without discriminating against any one.
    According to Joseph DeJardins and Ronald Duska there six possible options to test people for drugs:”
    • Regularly scheduled testing for all employees.
    • Regularly scheduled testing of randomly selected employees
    • Randomly scheduled testing of all employees
    • Randomly scheduled testing of randomly selected employees
    • Regularly scheduled testing of employees selected for probable cause
    • Randomly scheduled testing of employees selected for probable cause. (.( Joseph DeJardins and Ronald Dusk, 1987, p291)”
    According to them the efficient and morally right option would be randomly scheduled testing of employees selected for probable cause. So the question would be how we fairly collect evidence to ensure that we are not discriminating against any one.
    With modern technology and modern testing we can test if someone has been using drugs and if they are impaired or not. If we incorporate this modern testing and technology it would be reasonable and in expensive. Then we would have a fair way of testing people’s ability to do their job.
    I refer you back to the definition of privacy, when we look at what privacy is. This test will not invade your privacy as it is not set out to humiliate you or to examine your private life. It is there merely to ensure that you are capable of doing your job to the ability you agreed to.
    Therefore I think it will always be a matter of public opinion what is morally right and ethical.
    In my view there is only one morally right way of doing it. If you suspect an employee to be impaired and unable to do his job, you should do an impairment test and once you find the employee as being impaired you send that employee for a comprehensive drug test like urine, blood, saliva and hair testing.
    In doing it in that manner it is still randomly scheduled testing of employees selected for probable cause and it is not an invasion on their privacy. The policy of a Transport Company in New Zealand states that an employee in subject to drug testing for “Pre-employment testing, post-accident or post-incident testing, Reasonable cause testing, Random testing while on clients sites , serious misconduct and for rehabilitation (Freight Lines Drug and alcohol policy version 4)” .
    The reason for using this policy is because it is proof that the best solution surrounding drug testing policy is random testing of employees selected for probable cause, this policy mentioned above does not invade the privacy of the person if we use the definition stated above. It also does not discriminate against any employee. You can be subjected to random drug testing, when a client feels that you might not be able to do your job safely. That is also not an invasion of privacy as the client needs to insure a safe working environment for his employees.
    I know it will not work in all job situations but this is the best way forward for everybody. Whether testing for performance or safety, randomly scheduled testing of employees selected for probable cause is the only ethical and morally right option there is.


    Bibliography
    http://www.drugfoundation.org.nz/drug-information/drugs-in-new-zealand
    The Open Polytechnic of New Zealand. (2013). Module two. 71203 Business ethics. Lower Hutt, NZ: Author.
    Hornby, A. S. (2000) Oxford Advanced Learner’s Dictionary. 6th edition. Oxford University Press.
    Joseph DesJardins and Ronald Duska “ Drug testing in Employment” Business and Professional Ethics Journal 6 1987
    Freight lines Drug and alcohol policy version 4

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  6. Frist page

    The dictionary definition of privacy is “The state of being alone and not watched or disturbed by other people and the state of being free from public attention (Hornby, 2000, p926)”. The reason for starting with the definition of privacy is because the whole issues surrounding drug testing at the workplace privacy is at the forefront.
    Everyone has the right to privacy but everyone also has the right to a safe and healthy work environment. So how can we balance two?
    One of the transport companies in New Zealand defines drugs as “legal, illicit and restricted drugs and misused prescription drugs.
    New Zealand is one of the world’s smallest first world countries. The most up to date drug statistic I found is that in 2007 one in six New Zealand adults used drugs during that year. In the same year 84% of New Zealand adults consumed alcohol at least twice a week.
    I know these statistic do not tell the whole story as not everyone abuses drug and alcohol to a point where they are impaired. The reason for quoting these statistics is to show if that is the ratio in which people consume drugs and alcohol, we need safety protocols in place to ensure everyone in society has a safe environment.
    I know there are some occupations like pilots and truck drivers that when impaired can cause a greater risk to public safety than for example an accountant. On the other hand an accountant might need to keep his productivity and accuracy to high standard and when impaired he won’t be able to.
    When looking at the above statement a pilot/ truck driver when impaired can put other people’s life at risk but a stoned accountant, it only affects his work ethic. I don’t know about other readers but if I have to hear that the plane I am on is being piloted by a stoned pilot I would be upset and get off it. Where for example a stoned accountant not getting my tax return in on time I don’t really care about.
    The problem with society is that when something can cause physical harm we want procedures in place, if it doesn’t pose a physical threat I don’t really care.
    As employees we sign a contract with our employer that we deliver a certain standard of work. The reason for agreeing to this contract is for remuneration for our service. So would you be happy to be paid less if you cannot deliver on the standards that you agree to?

    ReplyDelete
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