September 8, 2008

Occupational Health and Safety

Ontario not following British Columbia’s lead on drug testing

VINCE VERSACE

staff writer

A drug and alcohol testing policy reached jointly by construction unions and employers in British Columbia is not an indicator of things to come in Ontario, say various industry officials.

“There is discussion here in Ontario about drug testing, but at the moment labour and management appear to be diametrically opposed on the issue,” said David Surplis, consultant to the Council of Ontario Construction Associations and its acting president.

“We support anything that will improve safety on the work site and that is why we support this (testing).”

The Construction Labour Relations Association and the Bargaining Council of British Columbia Building Trades Unions recently announced a drug and alcohol testing policy that they consider the first industry-wide pact on substance abuse in Canada.

“With this program in place we can assure our clients, the general public and our employees that this policy will help make our worksites substance free, and any worker who tests positive for drugs is immediately taken off the job,” Clyde Scollan, president of Construction Labour Relations Association, said in a statement.

In neighbouring Alberta, drug and alcohol testing in construction is a workplace safety issue which supersedes the rights of an individual, an appeal court in that province recently ruled.

That Alberta appeal court decision is one the Ontario General Contractors Association (OGCA) agrees with, said its president.

“We believe in that here,” said Clive Thurston, president of OGCA.

“However, it has to be worked out with the union and really needs to be a joint agreement between labour and management.”

The Alberta Court of Appeal overturned a lower court judgment that Kellogg, Brown & Root (Canada) Company discriminated against a man in 2002 when the company fired him from an oilsands project after he tested positive for marijuana.

“We see this case as no different than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer’s vehicles,” the justices wrote.

The appeals court said it was legitimate for Kellogg, Brown & Root to presume that people who use drugs are a safety risk in an already dangerous workplace.

“Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic,” the justices wrote.

Patrick Little, business manager of Labourers’ International Union of North America, (LIUNA) said his organization fully supports initiatives to secure worksite safety, but infringing on a worker’s human rights is the problem.

“What concerns us is when the drug testing comes up against the human rights code in Ontario,” he said.

“Can it be done by not violating a worker’s rights in the process?”

LIUNA is also concerned with the validity and reliability of tests for certain drugs, especially if there is no obvious impairment at the time of the test.

In B.C., drug and alcohol testing will be conducted on employees involved in workplace accidents or near misses, or when there is reasonable suspicion of on-the-job impairment.

Drug tests before a worker is hired are also permitted, but those tests are voluntary.

Under the policy, the owner or client of a project can ask that workers be tested before the project begins.

The tests will check for alcohol and nine common drugs, including marijuana, cocaine and amphetamines.

Both sides in the B.C. agreement agreed the tests will only measure current impairment without prying into the private after-hours actions of workers.

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