Human Rights Commission just says yes

by John Curran and Brandi Cramer

OTTAWA, Ont. – The Canadian Human Rights Commission has finally ruled on drug and alcohol testing and has acknowledged truckers running in the U.S. must comply with that country’s testing policies.

While the commission doesn’t endorse random or pre-employment testing for Canadian drivers operating strictly at home, it ruled, “for trucking and bus businesses that operate exclusively or predominantly between Canada and the U.S., not being banned from driving in the U.S. may be a bona fide occupational requirement.”

The Canadian Trucking Alliance (CTA) is of the same mind when it comes to this subject, and CTA chief executive officer David Bradley says the policy re-affirms the status quo.

“Canadian carriers with cross-border operations must be able to comply with U.S. laws or suffer severe penalties, including going out of business,” says Bradley. “In the absence of Canadian regulations governing drug and alcohol use in transportation, carriers have long recognized their obligation to structure testing policies in accordance with human rights law, while at the same time ensuring that employees in safety-sensitive positions are properly evaluated.”

If you’ve been staying close to home over the past year or so, you’ve missed the introduction of an updated testing regime.

The changes initially had some drivers shaking in their boots, but service providers stress there was really no need to fear.

The U.S. DOT changes mostly impacted those who provide the testing rather than those being tested.

Although some were expecting a wildly revamped document, the final product is an “amalgamation of guidances that had been issued previously” explains Barry Kurtzer, president, medical director and certified medical review officer for HealthStar Enterprises.

He says, whenever new rules come out, as good-intentioned as the people who write them would hope they are, sometimes the language is open to a variety of interpretations.

“It wasn’t that anybody was doing anything wrong, it was more or less an amalgamation clarification document and steps that they (U.S. DOT) would like to be taken for the future,” he says.

Kenneth Rodgers, the drug and alcohol program manager for the Federal Motor Carrier Safety Administration (FMCSA) says the rules had not been revamped for a number of years.

“This was an opportunity to modify and enhance the regulations based upon experience and changes in the drug and alcohol testing industry,” says Rodgers. “Additionally, the intent of the modifications were to ensure consistency between the modal requirements and the revised requirements in the Department’s drug and alcohol testing regulations.”

Impact to providers

The major impact on the providers really deals with how testing is administered.

Things such as how a specimen is collected; who is qualified to collect a specimen; who is qualified to act as a medical review officer; what are laboratory requirements to be accredited and perform such duties; and how reporting of information should be handled, are some of the areas being examined, explains Kurtzer.

Driver effect

In reality, the outcomes affecting the driver are not significant because the driver is still responsible under the U.S. DOT rules to pass a test in order to maintain the privilege to drive on U.S. highways.

“The driver is still going to show up at a collection site, provide a urine sample, sign appropriate custody control forms,” explains Kurtzer.

Cheater beaters

Additions to the rules include validity testing, which will see testing for adulterates become mandatory.

“There are many different chemicals that are used for adulteration and laboratories will have a set process and procedures to test specimens for either adulterations or dilution or substitution,” he says. The new document contains language to make provisions for these procedures.

Simply typing “drug testing” into a search engine on the Internet, Kurtzer explains, will lead a person to many sites pushing liquids, compounds and other potions on drivers who could either consume or add the product into a urine sample while in the washroom.

“To try to hide a true fact, that maybe there are drug remnants still in their urine, is going to be picked up by the technology,” he says.

The dangers of some of these adulterates are very real.

“A lot of swamp water is being sold on the Internet for anywhere from $30 to $40 a vial,” warns Kurtzer.

“I hate to say it but some people have not received clear instructions for some of these things and instead of adding them to their urine sample, they were drinking them. In some cases the compounds are very, very toxic and they are lucky to be alive.”

He reports the number of cases with adulterations in Canada is extremely small.

Employer effect

For the employer, the revised documentation should spark some added interest. Betsy Sharples of the Ontario Trucking Association says fleets hauling across the Can-Am border should pay attention.

“The changes were supposed to have been for the service provider, but they did slip stuff in for the employers as well,” says Sharples.

Some changes include issues pertaining to cancelled tests.

In the past, a cancelled test was simply considered incomplete or cancelled. Now the medical review officer must inform the designated employee representative.

For example, if there is a fatal flaw identified by the lab when first receiving the sample, the lab has to report the sample has been rejected for testing. The officer will advise that no further action is required unless a negative test is required for pre-employment, return-to-duty or follow-up testing situations.

Another more important change in Sharples’ opinion is the extra onus imposed on employers to find past information about potential hires.

“Employers must still, with written consent from the employee, request specific information from previous employers. That hasn’t changed,” she says. “But what it does include now is all types of testing and in particular pre-employment information. That includes employers that the driver applied to work for, where they may not have been hired or contracted.”

How this is to be accomplished is a bit of a mystery.

For a driver wanting to haul on U.S. highways, the rules are simple – stay clean and you will be compliant.

Random testing rules see 50 per cent of drivers tested with their names going back into the hat after each draw.

For drivers, validity testing actually gives them additional rights in the case of a positive test.

“It used to be under the old rule, that if a sample was found to be adulterated, that would be reported directly to the company without interviewing the driver about the circumstances,” explains Kurtzer. “Now they offer the opportunity for the driver to be interviewed, provide an explanation, and also have access to the split specimen process.”

Splitting the specimen – ala most sports testing procedures – is where the urine sample would be divided into A and B samples. A is the primary sample to be tested in a lab.

If the results indicate a positive test, the medical review officer contacts the driver. If the driver does not agree with the findings and feels a mistake was made, he can request that the B bottle be sent to a different lab to test for the substance or chemical compound found in A.

Bill Kalbehnn, manager of safety and driver resources at MacKinnon Transport, says the changes really don’t have a big impact on his employer.

“We’ve been doing the right things all along,” he says. MacKinnon has both U.S. drivers and strictly Canada drivers, but the policy both groups must adhere to is exactly the same.

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