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Federal rights watchdog bans workplace drug tests

Federally regulated companies and public services must not randomly test or prescreen employees for drug and alcohol use, the federal human-rights watchdog says.

The Canadian Human Rights Commission released a new policy yesterday that says employee drug tests are an abuse of human rights under almost all circumstances.

"Positive results of drug tests do not suggest a person is impaired," commission spokeswoman Catherine Barratt said. "If you want to test for a safe environment, testing for drugs is not going to get you there."

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That's because tests can show traces of drugs weeks after they were used, long after an employee in question has sobered up. "There is no technology out there at the moment that tests for the impairment of drugs in the body," Ms. Barratt said.

Alcohol testing should be allowed only if an employer believes safety is at risk, the policy says.

"We accept that employees in safety-sensitive positions, where their impairment poses a risk to their own safety, to others, or to the environment may be subjected to random alcohol testing by their employer," acting chief commissioner Anne Adams said.

But even if such testing shows that a drunk employee is putting safety at risk, he or she can't be fired for that reason. Rather, the company or federal public service must take steps to rehabilitate the employee and cure the substance-abuse problem, Ms. Barratt said. The employee can be removed temporarily from the job in question, but once rehabilitated must be reinstated, she said.

Generally, the new policy will have its largest effect on federally regulated companies and public services that prescreen potential employees before offering them jobs, Ms. Barratt said.

"There's a strong possibility that a number of them are administering policies that are against the Human Rights Act," she said.

"What I do outside work hours does not have to have an impact on what I do during work hours. That's a violation of my privacy rights and my human rights."

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The policy applies to federal government agencies and departments, and federally regulated companies such as banks, insurance firms, airlines, telecommunications businesses and other companies that operate across the country.

It is retroactive to June 11, 2002.

Some provincial human-rights commissions, which govern provincially regulated workplaces, have also ruled against drug testing as part of an applicant screening process.

The Ontario Human Rights Commission, for instance, permits testing only in limited circumstances such as when an employee is in a safety-sensitive position or after significant accidents or near misses. And because drug and alcohol addiction is considered a disability, it is considered discriminatory to refuse to hire someone because of the presence of either substance in their blood.

The federal policy is a set of guidelines and does not have the force of law. If employees feel their employer has broken the policy, they can take their complaints to the Human Rights Commission. If the commission agrees with the complaint, it can challenge the employer before a Canadian Human Rights Tribunal. Either side can then appeal the tribunal's decision in court.

Still, the policy sets a standard, not just for federal institutions, but for companies and government services across Canada, Ms. Barratt said.

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The new policy expands on a previous one. But the older version did not address alcohol testing at all, and it applied more narrowly to the use of drug tests, she added.

Under the old policy, companies were prohibited from drug testing of employees who worked in areas that had nothing to do with physical safety, but safety-sensitive areas did not fall under the rule. Now, the policy has been broadened to say employers should no longer be prescreening employees for drugs, nor should they be randomly testing for drugs even in safety-sensitive areas.

Any test, for drugs or alcohol, must arise from a reasonable fear that safety is in question, or after an accident has taken place and the suspected cause is substance abuse, Ms. Barratt said.

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