Something very interesting is happening slightly under the radar at the Canadian Human Rights Commission (CHRC) and it could ultimately affect every fleet operator and driver.
After many years of turning a blind eye to the realities of the trucking industry vis-a-vis drug and alcohol testing, the CHRC has recently embarked on a review of its policy, and to its credit has solicited input from various sectors of industry including the PMTC. The review has, at least in part, been driven by recent case law and will serve to clarify the rights and responsibilities of job applicants, employees, and employers, according to the CHRC.
Perhaps the highest profile issue since drug and alcohol testing for truck drivers was mandated in the US in 1996-97 involves Canadian fleets that operate in the US. These fleets were on very tenuous ground if they wanted to comply with the mandatory testing that was required south of the border. In the beginning the Canadian trucking industry was effectively left to its own devices when Transport Canada refused to intervene to help pave the way for legalized testing by Canadian employers.
More recently, a ruling by the Canadian Human Rights Tribunal has changed the landscape for testing in Canada. In the oft-cited Milazzo vs Autocar Connaisseur case in 2003, an employee was dismissed after a positive drug test. The employee challenged that dismissal stating that the tests violated his rights under the Canadian Human Rights Act. The Tribunal ruled in favour of the employer, Autocar, stating that it had suitable and defendable reasons for requiring the test, and it was that decision that prompted the CHRC to review its policy. The current policy allows for testing of Canadian-based drivers who, because of their type of work, drive in the US. The policy is less clear on whether random or pre-employment drug and alcohol testing can be used for drivers who work only within Canada.
It is our hope that the review of its policy will prompt CHRC to proclaim a single policy that would apply equally to drivers who cross the US border and those who work domestically.
PMTC’s position has been consistent: that random, pre-employment, for cause, and post-incident drug and alcohol testing should be permitted for any safety-sensitive position, and that the employer, with reasonable grounds, should define what constitutes a safety-sensitive position.
Current case law allows employers to test for alcohol or drug use in a reasonable cause or post-incident situation as part of a broader investigation into a policy violation, and of course there is a requirement for accommodation for those who test positive for either drugs or alcohol and have a dependency.
Unannounced testing may also be a condition of continued employment after a policy violation, or as part of a monitoring program after treatment for a problem. It is the issue of random and pre-employment testing for drivers who remain in Canada that has been the subject of debate. PMTC, in its submission to CHRC identified several other issues that need consideration. For example, we recommended that drug testing by urinalysis be accepted as a means of determining impairment. Current thinking is that, unlike the generally accepted 0.08 limit for alcohol, there is no way to determine the extent of impairment in the event of a positive drug test.
The advice we have been given is that there is a ‘hangover effect’ from drugs, and that while the extent of that effect cannot be measured precisely, a positive test by urinalysis should be enough to indicate some level of impairment. Further, we believe that being drug-free should be a bona-fide occupational requirement for any safety-sensitive position. We also raised the issue of accommodation for those who test positive in either an alcohol or drug test. For some companies, particularly small-to medium-sized firms, accommodation presents not only an inconvenience but can be expensive for the employer.
While the employee who tested positive is obliged to actively participate in the accommodation and treatment, the CHRC policy is silent on who is responsible for services and costs related to accommodation. Since it was not the employer who initiated the problem we feel that it would be unfair if the employer were also burdened with ancillary costs for treatment. In our view these costs should be born by the individual who tested positive or the public health care system.
And finally we strongly urge a uniform, national approach to drug and alcohol testing that would, among other things, eliminate the opportunity for individuals with drug and alcohol issues to ‘shop jurisdictions’ when seeking employment.
It’s good news that CHRC is reviewing its policy, and we certainly hope that they will take the views they solicited to heart. •
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