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Mandatory drug testing not as easy as it seems

The tragic sinking of B.C.'s ferry, the Queen of the North, combined
with recent Transportation Safety Board findings arising from that
accident have led to calls for mandatory drug testing in the
transportation industry.  It's easy enough to react emotionally to this
tragedy with a call for tough drug testing measures, but it's a whole
lot harder to make that approach work.

The Transportation Safety Board indicated findings of marijuana use
among crews on B.C. Ferries' northern routes.  That, without any doubt,
is a cause for concern.  And whether the accident involves a ferry
sinking, a school bus smashing into a parked dump truck, or a plane
crashing into an apartment building, there cannot be any doubt that many
innocent lives are at stake when the operation of transportation
vehicles goes awry.

B.C. Ferries' president David Hahn has, as we might expect, given his
support for a mandatory drug testing regime.  B.C. Ferry and Marine
Workers Union president Jackie Miller has, as we might expect, opposed
such a program.  I don't think too much should be read into either's
view, given their respective roles.

Workplace drug testing continues to be a very sticky issue for
management and unions alike.  There is, first, the issue of the
technology.  As of the last time I checked, drug testing detected recent
use rather than present impairment.  It is unlike alcohol testing in
that a breathalyzer measures current impairment.  I expect the testing
technology has progressed, but I doubt many employers have access to (or
could afford) whatever the latest advances have brought.

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
indicating on-the-job impairment.

Mandatory drug testing effectively presumes guilt.  If every employee
must submit to testing on a regular or random basis, that is an
indication of suspicion that each and every employee may have used
intoxicating substances.  By presuming that employees may have an
addiction issue, mandatory testing offends the human rights protections
which exist in every jurisdiction in Canada.

Think about the "slippery slope" impact of imposing mandatory drug
testing for crews on public carriers such as B.C. Ferries.  Surely they
aren't the only people in a position to cause injury to passengers or to
the general public in the course of carrying out their job duties.  What
about school bus drivers and dump truck drivers?  What about pilots of
private aircraft and crane operators and hospital staff?  What about you
and I operating our vehicles on public roads each day?  

As with many things in life, the difficulty with getting started down a
particular route lies in finding a reasonable place to stop.  In B.C.
Ferries' case, many difficult questions would be generated by the
imposition of a mandatory drug testing regime for crew members.  Who
would they test?  Every crew member on duty on every vessel?  That,
surely, would be overkill.  

Perhaps they could test only the crew members who actually work on
navigating the vessel.  But what about the employees who operate the
docking and vehicle loading mechanisms (and all the others who
contribute in some way to the safety of passengers and the public)?

Which drugs would B.C. Ferries test for - only marijuana?  What about
other narcotics?  What about legitimate, prescribed medications which
can also impair the user?  Would the detection of any form of drug in
the employee's sample be a sufficient basis for a disciplinary response?

And just what would B.C. Ferries be expected to do if it received a
positive drug analysis for one of its employees?  How would it know
whether that person has ever been under the influence while on the job?
If that employee hadn't ever been impaired at work, would it be
reasonable or fair to discipline or dismiss her for purely recreational

The real evil in the B.C. Ferries case may not be the fact that some of
its employees use illegal narcotics, whether on or off the job.  The
real evil may be that their co-workers seem to have been unwilling to
stand up for what is right by blowing the whistle on those who may have
been impaired on the job.

This can be a symptom of a heavily unionized workplace.  Union members
often don't want to be the whistleblower against their union brothers
and sisters.  It's a mentality which, if not expressly advanced by union
representatives, is certainly implied in the solidarity-focused union

The solution in B.C. Ferries' case is probably not a witch hunt for
every employee who has ever (or, at least, recently) taken drugs.  What
may be more effective is a concerted, co-operative focus by B.C.
Ferries, the B.C. Ferry and Marine Workers Union, and all of the
employees, on safety.  

That effort would, in part, be aimed at rooting out any employees who
jeopardize that goal of safety (regardless of whether they do so by
on-the-job impairment, by exhibiting a reckless attitude towards their
job, or by just plain old carelessness).  That result will be far more
effective in righting B.C. Ferries' ship than the imposition of
mandatory drug testing.
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