What are they smoking?

The World Health Organization estimates that up to 25% of all workplace accidents and 60% of fatal accidents are associated with alcohol.1 The U.S. Department of Labor states that up to 47% of industrial injuries can be linked to alcohol consumption and alcoholism.2 A survey in 2000 found that the construction and mining industries have the highest percentage of workers who reported illicit drug use or alcohol abuse.3 In another recent study, companies that implemented drug testing programs reported a 51% drop in accidents within two years, as well as lower workers’ compensation costs.4

Faced with these alarming statistics and the obvious safety issues that they raise, mining companies may want to test workers for drug and alcohol use. However, provincial human rights commissions take the position that most forms of drug and alcohol testing violate human rights laws. Damned if you do, damned if you don’t.

Mining health and safety laws

Health and safety laws, like human rights laws, vary by province. But all health and safety laws require the employer to ensure that the workplace is safe for its workers, including contract workers.

In several provinces and territories (B.C., Manitoba, Newfoundland and Labrador, Northwest Territories, Nunavut, Ontario and Yukon), safety laws specifically prohibit workers from working while impaired (Table 1 on page 28). Some of those provinces have special mining industry rules dealing with impaired workers.

For instance, mining regulations under the Ontario Occupational Health and Safety Act provide that,

“No person under the influence of, or carrying, intoxicating liquor [or a drug or narcotic substance], shall enter or knowingly be permitted to enter a mine or mining plant.”

It is not easy to catch impaired workers before they enter the mine. Often, persons under the influence do not appear impaired, so a check for indications such as glassy eyes or slurred speech is not sufficient. Drug and alcohol testing would therefore seem to be an important tool for ensuring that workers are not under the influence, and for complying with mining safety laws.

Testing and human rights law

What does human rights law have to do with drug testing? The short answer is that human rights law protects disabled workers. It is now widely accepted that drug or alcohol addiction is a disability. Because drug and alcohol testing can identify and impact workers with addictions, human rights commissions attempt to place limits on it–despite the fact that use of narcotics is generally illegal and not all users are addicted. The authors’ experience has shown that human rights commissions are particularly opposed to random drug testing.

To make their position clear, most Canadian human rights commissions have drafted their own policies on drug and alcohol testing. Those policies are not “law”, but explain the human rights commissions’ interpretation of the law (Table 2 on page 28). The policies treat drug and alcohol testing differently. This is because a positive alcohol test proves impairment while–based on current technology–a positive drug test proves only that the person used drugs.

What about workers who are casual users of drugs or alcohol and are not addicted? Since they do not have a “disability”, should it not be legal to test these casual users? One problem with the human rights commissions’ policies is that many don’t distinguish between the testing of casual users and the testing of addicts. In one of the few Canadian judicial decisions dealing with drug and alcohol testing, Ontario’s highest court struck down provisions in Imperial Oil’s drug and alcohol testing policy because it treated all drug and alcohol users–including casual users–as abusers.

With careful legal review to ensure that policies distinguish between casual users and abusers, an employer may reduce the risk of its policy being struck down or rewritten by human rights adjudicators or the courts. But there is no definitive court decision to date confirming whether, with an appropriately drafted policy, all types of drug and alcohol testing–including random testing–are legal.

Dealing with the dilemma

Mining companies are faced with this apparent conflict between health and safety laws and human rights laws. The first step they should take is to assess the risk of drug- or alcohol-related accidents in their workplace. Then they should weigh the health and safety considerations against the risk of a human rights complaint. In many cases, the health and safety considerations–preventing injury and death–will win out.

Employers in the mining industry who choose to implement drug- and alcohol-testing programs must prepare a carefully-drafted policy. There are three critical points here:

* the policy should provide for a confidential testing process conducted by a professional firm with expertise in drug and alcohol testing;

* the policy should not treat all drug and alcohol users as abusers. Instead, it should recognize that many drug and alcohol users are “casual users”; and

* the policy should provide for treatment and rehabilitation of addicted workers, and should not provide for immediate dismissal of workers who test positive.

Employers with unionized workplaces must consider whether a testing program might lead to a grievance under the collective agreement. Labour arbitrators, like human rights adjudicators, have the power to strike down all or part of a testing policy. Unions often oppose drug and alcohol testing but recognize the related safety issues. Negotiations with the union may be necessary.

Employers at remote mines–for instance, those with fly-in access only–may also want to consider implementing processes for keeping all drugs (and possibly alcohol) out of the community. Local privacy laws should be considered if searches will be performed.

Given the potential challenges and pitfalls of drug and alcohol testing programs, it is important for employers to seek legal advice on the proper drafting of policies. As the Imperial Oil case shows, if the policy treats all drug and alcohol users as abusers, it raises human rights issues. But if the policy treats casual users as users only, and provides an appropriate rehabilitation program for workers with addictions, employers may be able to withstand–or avoid–a human rights challenge.

Adrian Miedema is a partner and Christina Hall is an associate in the Toronto Employment and Labour Group of the national law firm Fraser Milner Casgrain LLP, recognized for its expertise in the mining industry. Adrian can be reached at (416) 863-4678 or adrian.miedema@fmc-law.com, and Christina can be reached at (416) 862-3429 or christina.hall@fmc-law.com.

Footnotes

1 Global Status Report on Alcohol 2004 (Geneva: World Health Organization, 2004) at 60.

2 M. Bernstein. & J. Mahoney, “Management Perspectives on Alcoholism: The Employer’s Stake in Alcoholism Treatment” (1989) 4:2 Occupational Medicine cited in General Workplace Impact (Washington: U.S. Department of Labor), online: U.S. Department of Labor <http://www.dol.gov/asp/programs/drugs/workingpartners/stats/wi.asp>.

3 National Household Survey on Drug and Alcohol Abuse: Substance Use, Dependence or Abuse Among Full-time Workers (Rockville, MD: Substance Abuse and Mental Health Services Administration, 2002), online: Substance Abuse and Mental Health Services Administration <http://www.oas.samhsa.gov/2k2/workers/workers.pdf>.

4 Jonathan K. Gerber & George S. Yacoubian, “Evaluation of Drug Testing in the Workplace: Study of the Construction
Industry” (2001) 127 Journal of Construction Engineering and Management 438 at 442.

Table 1. Workplace safety laws dealing specifically with impairment from drugs or alcohol

	Drug testing	Alcohol testing
Pre-employment	Illegal	Illegal
Random testing	Illegal	Legal
		(for safety sensitive
		positions only)
Pre-transfer testing	Illegal	Illegal
Post-incident or –	Legal	Legal
accident testing	(for safety sensitive	(for safety sensitive
	positions only)	positions only)

Table 2. The position of most Canadian human rights commissions on drug and alcohol testing

Province	Drug and alcohol	Drug and alcohol
	impairment	impairmet
	rules for all	rules specifically
	workplaces	for mining industry
Alberta
British Columbia	*	*
Manitoba		*
New Brunswick
Newfoundland
and Labrador	*	*
Northwest Territories	*	*
Nova Scotia
Nunavut	*	*
Ontario		*
P.E.I.
Quebec
Saskatchewan		*
Yukon	*

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