sites is a reality for the industry coast-to-coast to be aware of, say legal experts.
“There will be a continued push toward random testing here in Canada,” said Michael McCreary, partner, Watson Jacobs McCreary.
“We have seen unions over the years spend a great deal of resources resisting that movement and they’ve resisted post-incident testing, but that has a toehold and they’ve resisted for-cause testing and that has a toehold.
What I see is an increased desire for random testing, particularly when the technology catches up to the employer’s desire to find current impairment as a result of tests.”
McCreary was joined by fellow alcohol and drug testing legal experts Michael McFadden, Ogilvy Renault and Barb Butler, president Barbara Butler and Associates, at the recent fifth bi-annual Construction Labour Relations conference to discuss current law on the issue.
“I think random testing is the coming wave – it is already in place in a number of different industries, in particular in the United States,” said McFadden.
“There’s no doubt that unions are concerned about safe workplaces because it is their members that are at risk.
“I don’t think the invasion of privacy argument is holding as much water as it did 10 years ago.”
Butler explained that the alcohol and drug testing landscape is as varied across Canada as are the instances when tests can be administered including:
• Applicant testing as a final condition of qualification
• Required site access testing
• Reasonable cause testing on the job
• Investigation into a serious incident
• As a condition for someone to resume work/continued employment
• Random testing
“In my mind, you cannot introduce any type of testing, under any type of circumstance, without a clear, well communicated policy, support for people, training of supervisors etc as part of the package,” said Butler.
“Then, when you do have testing, there’s a number of circumstance under which testing can play a role and each one of those has its nuances.”
Butler said she has seen a “high level of co-operation” among construction trades, contractors and some owners in setting up policies around drug and alcohol testing, in particular in New Brunswick, British Columbia, Alberta and Saskatchewan.
She has talked to construction owner associations and unions there and they have developed policies that include testing under certain circumstances.
McCreary finds that he has not seen a resistance to doing things that promote safety on sites but a resistance to the invasion of privacy with random testing.
He also noted that the current case law almost makes it impossible to reconcile legal consistency nationwide.
McFadden added that some case law is leaving Ontario in a unique position.
“Ontario is starting to find itself to be an island. At both ends of the country, there’s a movement by adjudicators that pre-access or random testing is appropriate in some circumstances and workplaces,” said McFadden. – Daily Commercial News.

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