Pubdate: Tue, 30 Nov 2004 Source: National Post (Canada) Copyright: 2004 Southam Inc. Contact: http://www.nationalpost.com/ Details: http://www.mapinc.org/media/286 Author: Karen Selick, Financial Post Note: Karen Selick is a lawyer in Belleville, Ont., and a columnist for Canadian Lawyer magazine. Referenced: http://www.mapinc.org/drugnews/v04/n1653/a05.html Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada) Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization) Bookmark: http://www.mapinc.org/testing.htm (Drug Test) THE MARKETPLACE CAN DO ITS OWN DRUG CONTROL The National Post's recent front page article, "CEOs Fear Reefer Madness," provides yet another compelling example of how one bad government policy reinforces others. The Canadian Council of Chief Executives (CCCE), a group comprising the CEOs of many of Canada's largest businesses, has expressed concerns that proposed federal legislation relaxing marijuana laws might reduce safety and productivity in the workplace. It's a valid concern. Nobody likes to think that the crane operator on a construction site, the factory worker assembling automobile brakes or the bank employee entering financial data might be high on marijuana. But the solution is not to oppose the decriminalization of marijuana and continue penalizing people for their recreational activities. It's to ensure that people under the influence of marijuana can be weeded out (pardon the pun) of the workplace. Unfortunately, Canadian law severely hinders employers who attempt this. According to the Canadian Human Rights Commission (CHRC), "The Canadian Human Rights Act prohibits discrimination on the basis of disability and perceived disability. Disability includes those with a previous or existing dependence on alcohol or a drug. Perceived disability may include an employer's perception that a person's use of alcohol or drugs makes him or her unfit to work." In other words, employers who suspect an employee of being incapacitated by drugs during working hours cannot fire that person even if the employer's suspicions could be proven true. Some companies, including Imperial Oil Limited and the Toronto-Dominion Bank, tried in the 1990s to implement drug-testing policies for their employees but found themselves hauled into court, charged with discrimination and human rights violations. Although the resulting court rulings are complicated to interpret, employers quickly got the message that they'd better not even think of requiring drug tests. Such tests are flawed, opponents argue. They sometimes produce false positives. They may indicate that marijuana use occurred two weekends ago, but not that a worker is actually stoned at work. These arguments have some merit, but employers are intelligent enough to understand the, too. Few would be so irrational as to summarily dismiss an otherwise valuable employee on the basis of one failed drug test without looking into the matter further. It's simply bad business. There are costs involved in recruiting and training replacements, and the new worker may well turn out to be less satisfactory than the old. Besides, according to the formulation of the law by the CHRC, even if we had much more sophisticated tests that could demonstrate on-the-job impairment with 100% accuracy, employers still wouldn't be able to fire the employees exposed as druggies. That would be discrimination against someone with a perceived disability. Shame, shame! What an extraordinary country this is, where we don't mind dissuading people from using drugs by threatening them with the loss of their liberty, but we forbid dissuading them from using drugs by threatening them with the loss of their jobs; where we'll spend endless amounts of public money trying to ferret out the identities of drug users so we can throw them in jail to vegetate, but prohibit the expenditure of private money so that we can have safe workplaces and products. One red herring that continually surfaces in this discussion is the notion of mandatory drug testing. Compulsory drug testing imposed by the government would be an intolerable violation of citizens' civil liberties but that's an entirely different matter. When a private sector employer requests drug testing as a condition of employment, it's simply a matter of contract negotiation, not coercion. If the employee doesn't agree, he continues his job search elsewhere. Ultimately, the marketplace will impose its own discipline on employers who overstep acceptable boundaries of intrusiveness. Job candidates who are generally incensed by the indignity of drug testing will prefer to work for employers who don't demand it. Employers who insist on testing may lose valuable employees to their competitors who don't test. On the other hand, if most people really don't mind being tested, then the ones likely to quit a testing employer will be those who actually use drugs. The freedom for employers to request such tests could ultimately prove to be a more powerful disincentive to drug use than the criminal law has been. The marketplace can also be the ultimate arbiter on the question of whether drug use affects job performance sufficiently to warrant testing. Some employers will gamble that it does; they will go to considerable expense testing all employees, and replacing or getting treatment for those who test positive. Other employers will gamble that it doesn't; they'll save themselves the expense of testing, firing and treating, but will end up with some drug users on their payrolls. If drug users goof up a lot, the firms that didn't test will become less profitable than their competitors who did. On the other hand, if the cost of testing, firing and treating outweighs the cost of goof-ups, firms that test will become less profitable. Either way, financial incentives will push employers in the right direction. What's needed is for influential groups like the CCCE to take a principled stand against bad legislation like the Canadian Human Rights Act, instead of being manipulated into supporting other bad laws like the prohibition of marijuana. - --- MAP posted-by: Jo-D