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Breath Alcohol Testing in the Workplaceby Jan Semenoff This is Part 1 in a series of articles on Breath Alcohol Testing in the Workplace. If you need a definitive guide of Breath Alcohol Testing, click here. An Overview to Workplace Alcohol Testing
Some non-transportation industries in both Canada and the US have carried this notion still further, and have implemented mandatory drug and alcohol testing policies with zero-tolerance for employees who work in safety-sensitive positions. The implementation of these programs has come as a result of mandated compliance requirements. The overall cost and inconvenience is seen as a burden by the employers. It is fair to say the issue of workplace testing has been disapproved of by employees and their unions as well. In short, breath alcohol and drug urinalysis testing is taking place, but few like the idea. The US Omnibus Transportation Employee Testing Act 1991 was initiated by the derailment of a New York City subway. The subway operator had a BAC of 0.021 (21 mg%) more than 13 hours after the crash. [Using a very rough retrograde extrapolation that puts the subway operator’s BAC at between .190-.250 (190-250 mg%) at the time of the incident.] The Omnibus Testing Act is the legislation that changed the face of alcohol and other drug testing in the United States. The legislation required the US DOT to issue regulations to include testing for alcohol; the most commonly used and abused substance in the United States. It also expanded drug testing. Mass transportation was specifically included in the drug testing programs to override a court decision that the Federal Transit Administration lacked specific regulatory authority in this area. Nearly 10 million transportation personnel in safety sensitive positions are now included in the alcohol and other drug testing program. Notably, every holder of a commercial drivers license (CDL) is included. This law requires every driver of a bus, large truck, train, boat or airplane to be subject to testing. Holders of CDLs coming into the United States are also covered by this act. The issue is not going to go away. Canadian lawmakers and courts have remained largely silent on workplace testing, with a single policy statement coming from the Canadian Human Rights Commission (CHRC). Proponents of workplace testing see it as a means to lowering incidents and loss involving alcohol. Opponents see it as a Draconian measure that is demeaning to workers and one that will not ultimately make workplaces safer. The CHRC sees any alcohol usage by the employee as a medical issue, and therefore a condition that cannot be discriminated against, as with any other physical challenge. Each party brings their individual agenda to the discussion on workplace testing. Workplace Testing TerminologyWorkplace testing uses slightly different terminology from criminal testing: § Random Testing § Pre-employment screening § Reasonable suspicion testing § Post-incident testing § Return to work testing § Pre-access testing
The CHRC views safety-sensitive positions within the context of the work being performed. If the work is likely to have direct or significant risk of injury to any worker as a result of alcohol or drug impairment, then it is considered safety-sensitive. Other workplace procedures, supervision and roles are taken into account. Drivers whose routes take them into the United States will have to comply with this protocol if they wish to cross the border. Presently, under US DOT rules, 10% of a driving workforce must be randomly tested annually for alcohol usage. If a driver tests positively for alcohol or drugs, they could be barred from commercial driving in the United States. The loss of driving privileges may form the basis of a valid human rights complaint. According to the CHRC, not being able to drive and therefore make a living may be grounds for the complaint based on a real or perceived disability. Canadian employers must accommodate their suspended drivers to the point of undue hardship. The CHRC has stated that random testing of employees for alcohol in safety-sensitive positions may be included in workplace testing if the employer can demonstrate that it is required as a bona fide occupational health requirement. Non safety-sensitive positions are not testable. Random testing for drug usage is also not allowable, whether the job is safety-sensitive or not, as the tests can only show past or current use of the drug without giving an indicator of impairment. Pre-employment screening is most often done for drug use, as opposed to breath testing for alcohol use. Once a job offer has been made, employers may require the prospective employee to pass a medical examination that includes a screening of past drug use by way of urinalysis. Commonly abused drugs can be present in trace amounts in urine for 30-60 days after use. The CHRC has ruled that pre-employment testing for either alcohol or a drug in no way predicts impairment while on the job, and is therefore not allowable. Reasonable suspicion testing is allowable only in safety-sensitive positions. The employer must demonstrate that being drug and alcohol free is a bona fide occupational requirement given the circumstances of the worker at that workplace. Requirements are placed upon the testing and the work environment support programs in order to make testing validly applicable at the workplace. Post-incident testing is allowable only in safety sensitive positions, but again only if the alcohol or drug consumption is a contributory factor to the incident. Post-incident testing may be necessary to “ensure the heightened safety standard that is necessary in risk-sensitive environments.” The testing, however, must be part of a broader program of medical assessment, monitoring and employee support. Return to work testing may be allowable under certain circumstances, again as long as they are part of a broader program of medical assessment, monitoring and employee support. Pre-access testing is a relatively new term in breath alcohol testing. It refers to the practice of screening employees based on reasonable suspicion or random testing prior to their accessing any workplace or work area that may be considered high-hazard. In practical terms, the employer would again have to substantiate the claim that the work practices or work area possess a high enough level of risk to make this sort of testing appropriate. The CHRC did not specifically address pre-access testing, but did address the constituent testing methodologies used in these programs. Policy RequirementsWhat do you hope to accomplish with an alcohol testing policy? If the objective is a “safer workplace”, perhaps that goal is only obtainable by using alcohol testing as an individual component of a bigger policy picture. I can assure you that any policy perceived by employees as punitive will not be regarded positively, and therefore not widely followed. Well thought-out policy must be compliance-driven (my term). Compliance-driven policies make sense to all who must follow them. Compliance-driven policies will be championed by both managers and employees. These policies will be perceived as fair, impartial, and the most common-sense approach to the issue at hand. The policies will ultimately work, because they beg to be followed. In all cases where alcohol or drug testing is allowable, an employee who tests positively “must be accommodated by the employer to the point of undue hardship.” This requirement typically results in the following program components: § Temporary removal from a safety-sensitive position § Referral to a drug and alcohol councillor § Provision of support for treatment § Return to work following rehabilitation o Follow up testing in safety-sensitive positions may be required or allowed. § Sanctions following further violations: o Verbal warnings o Written warnings o Suspension o Dismissal. The sanctions against employees who test positive for alcohol should follow the outline above. When we consult with employers on policy development with regard to drug and alcohol testing, we take the following positions: § The program developed must be supportive and rehabilitative in nature, and cannot be perceived as punitive or done as a means of punishment. Testing positively cannot result in dismissal the first time. (And probably not the second or third time either.) § The employees must be provided with an opportunity for rehabilitation, and should be returned to work in their original jobs as soon as practical. § The program must be seen as fair and impartial by all participants. Random screening without reasonable suspicion of alcohol consumption should not be performed. § Alcohol screening, if performed, must also be seen as impartial. The screening devices must be approved, calibrated, and operated by a qualified operator. We suggest a unit that provides a BAC be employed. Confirmation testing must take place for readings higher than the threshold amount set by the employer, with 0.020 (20 mg %) being a suggested amount. § Training regarding safe work practices and program expectations are a fundamental component. Education is mandatory. § The program must be absolutely confidential. Employers should remove a worker immediately from a safety-sensitive position if they have reasonable grounds to suspect alcohol consumption. They should perform an impartial alcohol screening test and take the necessary steps to ensure the safety of the worker, and other workers who would be affected by the safety-sensitive components of the job in question. Most people, and most unions, will support the position that precludes a worker’s involvement in a situation that could harm, injure or kill anyone while they are impaired. What becomes contentious is the notion of alcohol screening or testing, and what happens to the worker who tests positive afterwards. As you might expect, I’m a proponent of workplace alcohol screening. The screening test, especially if performed by a trained operator using an instrument capable of determining a BAC, provides a degree of substantive evidence concerning alcohol consumption. The test, the testing process, and hopefully the tester, are impartial components of the workplace incident involving alcohol consumption. The test itself, while perhaps intrusive or embarrassing, provides a greater degree of impartiality as opposed to the boss or manager who suspects alcohol impairment, and acts accordingly but without independent or substantiated verification. I have dealt with employers who want the policy to include immediate suspension or dismissal, but this simply is not workable, and will not be allowed should a human rights violation be claimed. The key to a compliance-driven policy is the rehabilitation component. For more information, or if you have any questions or comments, click here: |
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