History of Drug Testing in Canada

1. History of Drug Testing in Canada Greg Demers General Manager Occupational Testing Services

2. History • 1996 - NAFTA - DOT regulations came to Canada • 1998 November Ontario Human Rights published a three page policy on Drug testing. • 2000 July - Case Law - Imperial Oil Final Decision handed down from a complaint from Jan 1992 and amended in 1995. • 2000 Sept Human Rights Ontario Publishes new policy. • May 2001 - Canadian Model for Providing a Safe Workplace written by the COAA. • 2002 Oct - CHRC publishes Federal policy. • 2003 Nov - AutoCar Connaisseur Inc. HR Decision. • 2005 COAA revised Canadian Model to conform to Human Rights issues with accommodation. • 2007 Jan - Arbitration – Local 488, Local 720, and local 92 –and- Bantrel Constructors Co. – Policy upheld for Pre-Access Testing

3. Test Types -Pre-employment/Pre-Access -Accident -Reasonable Cause -Random -Return to duty -Follow-up testing How - Urine testing and breath alcohol testing

4. Drugs of Abuse • Alcohol • Marijuana • Cocaine • Amphetamine/Methamphetamine • Opiates/Heroin • PCP

5. MRO DUTIES • 1. Certification • 2. Verification • 3. Legal Backup • 4. Education • 5. Problem Solving

6. Substance Abuse Professional Evaluation • Required for each employee who violates rule • purpose to determine whether employee needs assistance resolving an alcohol or drug problem • Evaluation intended to be face-to-face • SAP evaluation prevails • Refer for any necessary treatment

7. TECHNICAL ASPECTS Collection – Custody and Control – Not Clinical Laboratory – DHHS Certified – Not CSA Confidentiality – Maintained At All Times Medical Review Officer – Protection of the Donor Arms Length Management – Union Preferred

8. Fitness for Duty Programs Q: Is a drug testing program legal? A: No, those companies who simply drug test and discipline based on the result will not likely survive the scrutiny of the Canadian Human Rights Board. Drug testing is one tool in a fitness for duty program. Q: I currently drug test my employees who are in Safety Sensitive positions. To be fair, should I just test everyone in the company so as not to discriminate? A: No, A relationship or rational connection between the drug or alcohol testing and job performance is an important component of any lawful drug or alcohol testing policy. In this regard, the policy must not be arbitrary in terms of which groups of employees are subject to testing. In other words you must justify why you are testing certain groups of employees. It seems that Human Rights puts more emphases on those groups in safety sensitive positions.

9. Q & A Q:Are the Human Rights issues my only concern? A: No, The Commission issues a policy which is a guideline based on past case law. The Commissions recommendations change as each new case is tested in the courts. Other areas in which you need to look at are Federal/Provincial/State laws. For example the Mining Regulations, Bill C-45, Occupational Health & Safety Act, the requirement for due diligence etc. which we will go over in more detail. An Ontario employer who is covered by the Act, has an obligation to take every precaution reasonable in the circumstances for the protection of a worker.

10. Occupational Health & Safety Act Nova Scotia Internal Responsibility System 2 The foundation of this Act is the Internal Responsibility System which (a) is based on the principle that (i) employers, contractors, constructors, employees and self-employed persons at a workplace, and (ii) the owner of a workplace, a supplier of goods or provider of an occupational health or safety service to a workplace or an architect or professional engineer, all of whom can affect the health and safety of persons at the workplace, share the responsibility for the health and safety of persons at the workplace;

11. Ontario Health & Safety Act Mining has the most legislation backing this type of program. In Ontario, the Health & Safety Act - Mining Regulation 854 specifies the following: Sec. 15 (1), (2), & (3); 1. No person under the influence of, or carrying, intoxicating liquor, shall enter or knowingly be permitted to enter a mine or mining plant. 2. Subject to subsection (3), no person under the influence of, or carrying, a drug or narcotic substance shall enter or knowingly be permitted to enter a mine or mining plant. 3. A person required to use a prescription drug and able to perform his or her work may enter a mine or mining plant upon establishing medical proof thereof.

12. Tanchak v. Locke Property Management Ltd. Tanchak filed a complaint that her employer, Locke Property Management Ltd., discriminated against her by terminating her position as manager of the company because of a mental/or physical disability. She felt she was terminated because of the employers mistaken belief that she was an alcoholic. Locke denied that Tanchak was perceived as an alcoholic, he claimed that as a result of smelling alcohol on Tanchak’s breath soon after she was employed and of complaints from other employees that they had smelled alcohol on her breath on several occasions she needed to be spoken to. Locke told Tanchak that he wanted her to abstain from drinking or smelling of alcohol during working hours. The complaint was dismissed. The Human Rights Code protects those who are mistakenly perceived to belong to a protected group. In this case, the Court did not find that Locke viewed Tanchak as an alcoholic.

13. Imperial Oil Decision - Entrop v. Imperial Oil Ltd In this case the complainant, Martin Entrop, disclosed that some years prior he had had an alcohol problem. Shortly after making such declaration, he was removed from his job and placed in a less desirable position. As a result, he complained to the Ontario Human Rights commission, which established a Board of Inquiry. Also Imperial Oil was running discriminatory practices such as, the workers had to report the use of prescription drugs and management didn’t, workers had to abstain from alcohol before duty and management didn’t, etc. although the managers worked in the same safety environment as the hourly workers. For employees working in safety sensitive positions, a single positive test would result in dismissal. PERCEIVED DRUG DEPENDENCE The board determined that a positive drug test was not correlated with impairment therefore dismissal as a result was unlawful. Imperial Oil didn’t have Medical Review Officers, Substance Abuse Professionals etc.

14. Nike Canada Inc. A British Columbia court has ordered Nike Canada Inc. to pay more than two million dollars in damages to a former employee who received a severe spinal cord injury driving home from work after consuming excessive amounts of alcohol provided at least in part by Nike. The employee’s supervisor provided dinner and several cases of beer to a crew working late to set up a trade show. The employee–in the presence of supervision– consumed alcohol to the point of impairment at the job site, and after work went to a bar and continued to drink for several hours before attempting to drive home. The court found that Nike was seventy five per cent responsible for the injuries to the employee by reason of providing alcohol during working hours and taking no steps to prevent the employee from driving home (apparently the individual had brought his car to work at the request of the employer). In its ruling, the court determined that an employer has a higher duty of care to an employee than a hotel owner or other “commercial host” with respect to the supply of intoxicants as an employer has an obligation to provide employees with a safe workplace.

15. Bill C-45 SUMMARY The purpose of this enactment is to establish, in certain circumstances, criminal liability of corporations for criminal acts or omissions carried out by their officers or staff. This arises if the corporation management knew or should have known of the act or omission or condoned or was willfully blind to it. It is not necessary for the act or omission to be committed by the same person who authorized it or tolerated it. Where it is shown that the corporation's staff committed the act or omission, the burden is on the corporation to show it was unauthorized and not tolerated by the corporation. It also establishes the criminal liability of directors and officers of a corporation that commits such acts or omissions if they knew or should have known of the act or omission. A further offence is created for a corporation that fails to provide safe working conditions for its employees, again including criminal liability for directors and officers who knew or should have known of the unsafe conditions and did not report them to the appropriate authorities.

16. DUE DILIGENCE DUE DILIGENCE IS THE LEVEL OF JUDGEMENT, CARE, PRUDENCE, DETERMINATION, AND ACTIVITY THAT A PERSON WOULD REASONABLY BE EXPECTED TO DO UNDER PARTICULAR CIRCUMSTANCES. IN THE WORKPLACE IT MEANS “TAKING ALL REASONABLE CARE TO PROTECT THE WELL BEING OF ALL EMPLOYEES.” DUE DILIGENCE IS DEMONSTRATED BY YOUR ACTIONS BEFORE AN INCIDENT OCCURS, NOT AFTER THE FACT.

17. Cornell Study • Among the study’s findings: • The average company that drug tests in the study sample experienced a 51 percent reduction in its injury rate within two years of implementing a drug-testing program from a rate of 8.92 incidents per 200,000 work-hours to 4.36 incidents. The difference was proven statistically significant when compared to the 14 percent decline in the average construction firm during the same time period. • The number one reason why employers in the construction industry drug test their employees and job applicants is to promote the safety of their workers and those who use their products and services. In addition, company officials believe that drug testing contributes positively to a company’s image and is an effective deterrent in preventing drug abuse. • The number one reason why some employers in the construction industry do NOT drug test their employees and job applicants is a concern for increased legal liability.

18. An evaluation of pre-employment drug testing U.S. Postal Service, Washington, DC As part of a blind longitudinal study, 5,465 job applicants were tested for use of illicit drugs, and the relationships between these drug-test results and absenteeism, turnover, injuries, and accidents on the job were evaluated. After an average 1.3 years of employment, employees who had tested positive for illicit drugs had an absenteeism rate 59.3% higher than employees who had tested negative (6.63% vs. 4.16% of scheduled work hours, respectively). Employees who had tested positive also had a 47% higher rate of involuntary turnover than employees who had tested negative (15.41% vs. 10.51%, respectively). No significant associations were detected between drug-test results and measures of injury and accident occurrence. The practical implications of these results, in terms of economic utility and prediction errors, are discussed.

19. Autocar Connaisseur Inc. (Nov 2003) And Salvatore Milazzo For several years, Salvatore Milazzo drove a bus for Autocar Connaisseur Inc. In August of 1999, Mr. Milazzo was ordered by his employer to undergo a drug test. The results came back positive for the presence of cannabis metabolites. As a result, Mr. Milazzo’s employment with the company was terminated, in accordance with Autocar Connaisseur’s ‘zero tolerance’ drug policy. Mr. Milazzo alleges that in failing to accommodate his perceived drug dependence, and in terminating his employment, Autocar Connaisseur has contravened section 7 of the Canadian Human Rights Act. It is further alleged that Autocar Connaisseur’s policy requiring that bus drivers undergo drug tests violates section 10 of the Act. Findings Regarding Liability and the Section 10 complaint Under the Meiorin and Grismer decisions, the burden is on Autocar Connaisseur to establish that its non-accommodating standard is reasonably necessary to achieve its goal of promoting road safety.37 While Autocar Connaisseur has justified its policy of subjecting its bus drivers to pre-employment and random drug tests, it has not satisfied the burden on it of demonstrating that it could not accommodate bus divers who have tested positive for alcohol or drugs and are alcohol or drug dependent. Accordingly, Mr. Milazzo’s section 10 complaint is sustained. REMEDY The Company cannot continue to do is to automatically withdraw an offer of employment or terminate the employment of drivers who test positive in employer-sponsored drug tests, where those employees or prospective employees can establish that they suffer from substance-related disabilities. We therefore direct Autocar Connaisseur to immediately cease the discriminatory practice of failing to accommodate employees or prospective employees who test positive in company-sponsored drug tests, in cases where the individual can establish that he suffers from a substance-related disability.

20. Conclusion Although Human Rights does play a part in guiding you in how the testing/programs must be run, there are other issues which must be considered. Risk Management is a big part of any safety program. You as a company must be prepared to justify any policies you implement. Part of the risk is having an employee complain about your action as a result of a policy/safety violation v.s. the risk of not taking any action. The choice is yours!

21. Summary • Drug testing in Canada may be legal but you must know the regulations and how to properly setup a drug testing program • Written Policy • Education and Training • Employees & Supervisors • Substance Abuse Evaluations (Determine Accommodation) • Rehabilitation (if required) (normally no cost) • Post Treatment and Follow Up Programs

22. Greg Demers General Manager Phone:  800-440-0023 Fax:  705-472-3130 gdemers@cannamm.com  www.cannamm.com