In August of 2008 B.C.’s construction employers and unions announced a joint policy aimed at reducing the occurrence of workplace drug and alcohol impairment. Their Substance Abuse Testing and Treatment Program Policy is an ambitious attempt to identify workplace impairment and to prevent related accidents.
The Policy only applies to unionized settings in the construction industry but non-union employers would do well to adopt its framework for their own purposes. The Policy tackles many of the difficult legal issues associated with workplace testing and the parties are owed a pat on the back for even attempting to navigate the many obstacles.
As I’ve said before, workplace testing continues to be a very sticky issue for management and unions alike.
There is, first, the issue of the technology which (to my knowledge) has been effective only at detecting recent drug use rather than present impairment. When it comes to alcohol testing, a breathalyzer or blood test can measure current impairment. Even if the technology to detect present impairment from narcotics exists, it is doubtful that many employers have access to (or could afford) the latest advances.
In addition to technological issues, human rights tribunals and labour arbitrators have been very stingy in defining the circumstances in which any sort of mandatory drug testing can occur. It’s one thing when the employee is exhibiting positive signs of actual impairment while working. It’s a whole other thing to be compelled to submit to testing when there are no circumstances necessarily indicating on-the-job impairment.
As with many of life’s challenges, the difficulty with getting started down a particular route lies in finding a reasonable place to stop. Many difficult questions are generated by the imposition of a mandatory testing regime. Which employees should be tested - every person working on every shift? Only employees who normally work in safety-sensitive environments?
Which drugs should the employer test for - only so-called recreational drugs such as marijuana? What about other narcotics? What about legitimate, prescribed medications which can also impair the user? Should the detection of any form of drug in the employee’s sample be a sufficient basis for a disciplinary (or other) response?
If the employer obtains positive drug analysis for one of its employees, what does it do next? Does it fire the employee without regard to the possible human rights implications of doing so? Should it delve into whether the employee’s usage is purely recreational or is the product of an addiction?
The construction industry Policy provides agreed answers to many of these challenges. Its objective is to detect current impairment so that’s an indication that technology has been located which will achieve that result for both drugs and alcohol. Perhaps because the Policy is being implemented on such a large scale, the technology and related costs will be more manageable.
The Policy provides for testing for alcohol and for nine other identified drugs. It also requires disclosure by employees of their use of prescribed medications which may cause any impairment of their ability to work safely.
The Policy applies to all individuals employed by a signatory employer under the terms and conditions of a collective agreement with a participating union. It provides for voluntary testing, post-accident testing, reasonable suspicion testing, and (perhaps most interestingly) to so-called “pre-access testing”.
Pre-access testing applies when, as a condition of entering the job site, employees are subject to the testing requirements of the client or project owner. The Policy doesn’t appear to spell out when that might be required or the criteria which might necessitate such testing.
The Policy is much more likely to find favour with human rights tribunals and arbitrators because of the comprehensive (17 pages - there must have been some lawyers involved!), educated manner in which it is set out. There are detailed procedures for provision of samples, specimen analysis, protection of personal information, and addiction counseling.
The rubber will hit the road, of course, when the construction employers begin to discipline employees for breaches of the Policy. Because the Policy is still subject to the normal grievance procedure, construction employers will be watching closely to see how frequently the Building Trades Unions resort to grievances.
While it remains to be seen whether the construction Policy will become the model for other industries, it is clear that the employers and unions put much thought and experience into its preparation. The fact that management and union representatives reached an agreement on a topic this challenging is, alone, worthy of congratulations.
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to http://www.pushormitchell.com/.