DAILY NEWS Nov 27, 2012 6:59 AM - 5 comments

Have drug testing rules kept up with the times?

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By: Harry Rudolfs
2012-11-27

Random drug and alcohol testing has been a fact of life for Canadian truckers crossing the US border since 1996. But the initiative began much earlier in the US, as part of the strategy of former US president Ronald Reagan’s “War on drugs.”

Federal employees were the first to be subjected to pre-employment and random tests. Soon after, the US Department of Transportation turned its attention to transportation workers occupying safety-sensitive positions, including ship captains, pilots and truck drivers.

Random drug testing has been mandated for US commercial drivers since the late 1980s and remains so to this day. Each year 10% of a carrier’s drivers are picked randomly for breathalyzer testing, while 50% are chosen for drug testing. The same formula applies to the US-certified drivers working for Canadian carriers.

From its inception, critics of the DoT program pointed out that it had political and ideological overtones. With the exception of alcohol testing, which has an established threshold for impairment, the initiative concerned itself more with an employee’s lifestyle than his or her fitness for the road. The policy was challenged as a violation of the Fourth Amendment, but was upheld in 1989 in a split five-four decision by the US Supreme Court. The court agreed that random drug testing was invasive in nature but was trumped by a concern for public safety.

But extending suspicionless testing to Canadian drivers became a pricklier problem, as human rights issues in this country are given a different weight than they are south of the border. Moreover, illegal drug use and addiction is considered a disability by Canadian courts, and those employees with a  problem must be accommodated.

Historically, random workplace drug and alcohol testing had been tried in Canada over the years. Toronto Dominion Bank and Imperial Oil were among employers who sought to institute drug testing regimens in the 1990s. But unlike the US Supreme Court, the Ontario Appeals Court ruled against Imperial Oil’s drug testing program because it failed to show a link between the capacity to perform a job and impairment (Entrop v. Imperial Oil, July 21, 2000).

But the appeals court did allow for random alcohol testing and drug testing in certain situations (reasonable cause, post-accident and return to duty), and agreed that drug testing could be a pre-employment condition for those applying to safety-sensitive positions.

Suncor is the latest player to jump into the random drug testing pool. The oil giant announced it would begin random drug and alcohol testing of its unionized workers at its Alberta plants on Oct. 15. This initiative was challenged by the Communications, Energy and Paperworkers Union, and on Oct. 14, an  Alberta Queen’s Bench judge granted an injunction against the protocol, until it could be ruled on by arbitration board, sometime around the end of November. Meanwhile, Suncor announced it is appealing the decision.

In a related case, the Supreme Court of Canada will ponder a challenge involving Irving Pulp and Paper of New Brunswick and the same union on Dec. 7. Irving has sought to randomly institute breathalyzer testing to its workers in safety-sensitive positions since 2006.

I first ran into workplace drug testing while working for a driver services agency in 1996 when the US requirements were put in place. During a safety meeting, the company president announced that he had enrolled all of us drivers in a random pool and that we could be called on to provide urine samples at any time.

At the time I was a recreational cannabis user (always while off-duty). If a test were given that day, I could have failed because I’d had taken a couple of huffs the previous weekend on a joint that was being passed around at a backyard barbecue in Holland Landing, Ont. One positive result would follow me all of my driving career; I’d be required to see a Substance Abuse Professional (SAP) and subject to months or years of follow-up tests.

As I recall, a couple of guys were called in to give samples over the next months, but a better job came along and I moved on. Since that time I’ve worked for three fleets and one carrier, all of them domestic, and the issue hasn’t come up again.

I recently checked with the same driver services agency and found out they dropped blanket testing soon after I left. The few drivers who do run Stateside are covered by an outside pool. The same was true for other driver services agencies that I called in the GTA, none of which had mandated pre-hire or random testing.

But not so for the major carriers, many of whom have drug and alcohol testing written into their policies and require all their drivers to be tested. Random drug testing of those drivers not required to go to the States would seem to run contrary to Federal Human Rights Commission rulings.

The Ontario Human Rights Commission states its position on its Web site: “Because drug tests do not actually measure impairment, random drug testing is an unjustifiable intrusion into the rights of employees.”

But drug testing is well-established in the US where, according to 2011 stats, 57% of businesses require pre-employment drug screens. State legislators are also looking to test people who apply for welfare and benefits. Drug testing providers are big business and a growing sector that supports a surfeit of labs, collection sites, databases, technicians, doctors and SAPs.

A plethora of products is available to analyze saliva, hair follicles, and perspiration, and the results can provide a detailed account of the presence of illegal or controlled substances. Non-DoT drug screens can also scan for up to 10 categories of illicit or prescription substances. And there are lots of vendors ready to supply products and services should your company want to go this route.

Urinary testing is the cheapest of the above and the established methodology for DoT standards. Five families of drugs are tested, often called the NIDA Five: amphetamines, cocaine, codeine, marijuana, and PCP. A case could be made that the scope isn’t broad enough, missing entire categories like tranquillizers and psychoactive drugs, while including PCP which has all-but disappeared. Much-abused prescription drugs like Vicodin and Oxycodone weren’t even around decades ago when these standards were developed.

Dr. Craig Karpilow, medical review Workplace Medical Corp. of Hamilton, Ont., was a young occupational doctor in Washington State when he served on a panel that advised the DoT in the 1980s. “It’s ancient history,” he says, but he recalls heated discussions between doctors arguing about what drugs to include. “I’ll show you my research paper, and you show me another one.”

Some drugs have been added more recently to the NIDA Five, including ecstasy and heroin. But cannabis may have complicated things once again, as 17 States and Canada currently allow the use of medical marijuana if it’s prescribed by a doctor.

The DoT Web site is emphatic that no positive test for THC is acceptable for commercial drivers. But Dr. Karpilow thinks this might be a contentious point.

“If they come up with a valid document, a doctor’s prescription, and they are within the allowable limits, then they are legally allowed to be using it (medical marijuana),” he says.

The protocol for collecting samples for DoT testing is considered almost foolproof. Bob Smith, safety and compliance manager for Mackie Moving Systems in Oshawa, Ont. recently got called to supply a urine sample as part of his company’s testing policy.

“It would be really hard to cheat,” he says.

“You have to empty all your pockets, and the water in the toilet is dyed blue, and your sample has to come back at a certain temperature,” Smith explains.

But with the prevalence of drug use in North American society, it’s not surprising that some people try to mask their sample by taking additives or tampering with their urine.

“We see it all the time,” says Dr. Karpilow. “People spend an awful lot of money on the Internet buying products that don’t work.”

Prescription drug abuse is the fastest growing problem in North America, and positive results for codeine are also not uncommon with or without prescriptions. Dr. Karpilow warns that Oxycodone, a commonly abused drug, is no longer legal or produced here.

“There’s a new type that’s time release that’s supposed to be less addictive. But if you’re got Oxycodone it must have come from China or somewhere else.”

Overall, Dr. Karpilow has noticed more marijuana use among working people and more cocaine use among certain ethnic groups, but this tends to be younger people, he says.

“Most drivers who come from overseas to drive truck here are usually clean. They don’t have any reason to fool around with that stuff. The trend that I see emerging is that Canada is going to move towards what the US is doing. After trucking, it will be the auto industry and construction, and then other safety-sensitive jobs like driving a forklift or handling molten steel,” he says. “Any job with a potential to injure yourself or others.” 


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Reader Comments

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Bob

I disagree with these tests,i think with today's tech. You should be able to test up to a few hours of when a drug was used.I agree 100percent that drugs and booze have no place in any vehical,the problem is not everyone thinks alike.Produce evedence of time of use.Dont ruin careers of recreational users of marajuna.I have drivin commrecial vehicals for 30years,and have been a smoker just as long.Mabie im just responsible,dut i've never mixed the two.As of 2011 i was informed i cant cross the border.Thats an industry loss,I can still drive in Canada.I know many drivers in the same situation.too bad.

Posted May 20, 2013 02:09 PM


Joy

Your seventh paragraph is in error. You say that the appeals court allowed for random drug testing and then used reasonable cause, post-accident and return to duty as examples. Those are not random. Those are quite specific. The nature of "random" is NON-specific. This would denote that there is no reason or pattern to the administration of the test. That is still a non-justifiable intrusion into an employee's personal life. Given the ability to manipulate the algorithm which determines the selection of candidates for random testing, the so-called justification will not stand up in court. Impairment on the job is indefensible, but termination of employment based on an inconclusive drug test is also indefensible and the courts usually favor the little guy.

Posted May 15, 2013 12:30 PM


Angelo Diplacido

I think its more complicated than what you predict here. Consider that the Liberals will use this as their selling point in the next election. You know those liberals, anything to get elected. Then you have more states legalizing the stuff which slides it further down the slope. There is also an obvious court challenge to prove that just because you have something in your system does not mean that one is intoxicated while operating equipment. Bad reflexes and cognitive abilities come from many different avenues than just substance abuse.

Alcohol testing is also behind the times. I often ask drivers in casual conversation what they do at the end of the day to relax. Some will answer with " Have a couple of beers" because its better than saying a few beers. Even they know the tipping point of that lifestyle (Pardon the pun). Have you noticed the red faces and brain fade from nerve damage from people who have made this their nightly ritual for the past 30 years. Is it really a sufficient form of testing to send them for a random breathalyzer?

The question is really, Which of these vices constitutes to sensory depravation and cognitive impairment over the long term when discussing whether or not we've kept up? The immediate and random testing method can be eluded for years.

If we were truly serious about testing , then it would include some form of aptitude test to determine senses, reflexes, and cognitive abilities are at rather than this mediocre approach we have now where bad apples get through. But alas, it would all be forlorn if the liberals were to simply legalized it. Wouldn't it ?

Posted January 7, 2013 09:13 AM


meslippery

No point testing for marijuana anymore its legal now.

.theglobeandmail.com/news/world/washington-state-lights-up-as-marijuana-officially-legalized/article6029908/

Posted December 6, 2012 04:10 PM


Miro

I was just forced to take a drug test, for an american company, and I was applying for a mechanics job in Canada Thay said because I had a CDL I had to take the test, even though I would never Drive a truck to the US. I had also taken A.C & C before the test which is an over the counter medication in Canada. I've decided not to work for the company, but it will be intereseting to see what comes up with the drug test.

Posted November 27, 2012 09:30 AM


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