Drug Testing in Selection: Legal, Ethical and Privacy Issues

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Drug Testing in SelectionLegal, Ethical and
Privacy Issues

• Kendra Beard
• Makenzie Donaldson

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What is Drug Testing?

• Definition
• Term to describe the number of methods used to
  determine if an individual is currently using
  drugs or if an individual has used such
  substances in the recent past
• Drug tests can detect the use of alcohol,
  prescription and over-the-counter medications as
  well as illicit drugs

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Drug Testing in Screening Process

• Purpose
• To screen out bad apples
• Justification
• Safety
• Absenteeism and lateness
• Sick leave
• Productivity
• Employer Liability

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Difference Between Alcohol and Drug Testing

• Alcohol testing
• Results show level of impairment
• Measure current usage
• Drug testing
• Questionable reliability and validity
• Invasive tests - bodily fluids are needed
• Available tests do NOT measure the level or time
  of impairment
• Positive tests do not establish the existence of
  dependency

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Studies Show

• Among drug users up to 50
• More absenteeism
• Greater use of sick leave benefits
• Drug users have productivity levels 10 - 60
  lower than non-users
• Dangerous working conditions, noise and dirt,
  conflicts at work and sleep problems are more
  strongly related to workplace accidents

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Arguments Against

• Inability to demonstrate impairment
• No relation to on-the-job performance
• Test errors and false positives/negatives
• Freedom of choice
• Privacy
• Confidentiality of results
• Workplace morale
• Drug testing programs have not shown to be
  effective in reducing drug use, work accidents or
  work performance problems

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History U.S. Influence

• Emerged in the mid-80s largely in response to
  issues occurring in the US
• ex. Transport accidents with drugs found on crew
• 1986 Reagan order requiring all Fed agencies to
  establish standards and procedures to ensure drug
  free workplace
• 1988 Employers doing business w/ govt in
  excess of 25,000 must also certify a drug free
  environment

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History U.S. Influence (cont)

• U.S. influences regulation in other countries
• Pressure to do business with U.S.
• Cross-border trucking and busing
• 1997 Cdn trucking companies must comply w/ U.S.
  regulation to operate in U.S.

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Background in Canada

• Past cases
• Entrop vs. Imperial Oil (1992)
• Entrop admitted to past drinking problem
• Sober since 1984, but demoted w/ same pay
• Rigorous reinstatement procedure
• Toronto Dominion Bank (1994)
• Blanket drug testing of all new employees
• Those testing positive were still hired, but must
  go through a confidential rehabilitation program
  at the banks expense

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Canadian Human Rights Act

• Updated July 10, 2002 following Entrop vs.
  Imperial Oil
• The CHRA prohibits discrimination on the grounds
  of disability or perceived disability
• Drug and alcohol dependency are considered
  disabilities under the Act

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Canadian Human Rights Act (cont)

• Outlines different applications of testing
• Pre-Employment testing
• Random testing
• Reasonable Cause and Post-Incident testing
• Fitness-for-Duty testing
• Mandatory Disclosure
• Follow-Up testing

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Canadian Human Rights Act (cont)

• Pre-Employment testing
• Since a positive pre-employment drug test will in
  no way predict whether the individual will be
  impaired at any time while on the job,
  pre-employment testing cannot be shown to be
  reasonably necessary to accomplish the legitimate
  goal of hiring non-impaired workers

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Employer Responsibility

• Must prove a Bona Fide Occupational Requirement
  in order to perform testing
• Accommodation to the point of undue hardship
• Counseling and rehabilitation
• We should help them, not punish them
• Ex. Trucker reassigned to Canada-only routes

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Alternatives

• Shortcomings of drug testing can be avoided by
  performance tests that measure actual
  concentration and reaction time instead of
  chemical residues
• Computer video game tests that detect impairment
  due to drugs, fatigue, stress, or illness are now
  available on the market
• Employee Assistance Programs (EAPs)
• Increased supervision and observation
• Positive peer reporting systems

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Conclusion

• Question time
• THANKS!