This backgrounder is not intended to discuss the merits of drug testing, or go into extensive details on the scientific considerations in setting up a program. It is simply intended to provide an overview of the main issues so that employers considering including testing as part of their alcohol and drug policy have a better understanding of the key issues.
Testing as Part of a Comprehensive Policy
Companies need to make a careful assessment of whether alcohol and drug testing should or should not be included in their overall policy. The introduction of testing in any workplace is a controversial decision, and should be made with full understanding of the role of testing in a comprehensive policy, and consideration of whether it is justified for certain employee groups.
Decisions are needed on who to test, under what circumstances, for what substances, using what technology, and what will be the consequence for failing a test, or refusing to be tested (including confirmed tampering with the sample).
Testing Options Under the Policy
Some companies may conclude testing will not play a role in the implementation of their policy. Others may conclude testing should be triggered for all employees under certain circumstances, or for certain groups of employees (e.g. high risk) under other circumstances. Each policy must be absolutely clear on when testing applies, and the procedures which will be used, as well as the justification for its introduction. The normal practice is to include alcohol and drug testing in a policy that also includes prevention/support initiatives.
Testing as part of an Investigation:
- Reasonable Cause: when there are reasonable grounds to believe an employee is unfit for work as a result of alcohol or drug use in violation of the company policy; and
- Post Incident: after a serious work-related incident or near miss as defined in the policy.
In both cases, supervisors need clear direction on how to investigate and make a decision on whether testing is required, and whether a second opinion is involved in the decision to test.
- After Treatment: After an employee has gone for treatment for an alcohol or drug dependency, as part of a relapse recovery program, they would normally be required to pass a test as a condition of return to work and be subject to unannounced testing for a period of time after treatment to support their recovery. The drugs covered and frequency and duration of testing would be determined on a case-by-case basis through the Substance Abuse Professional (SAP) recommendations. This and any other conditions would be set out in an agreement with the employee.
- After a Violation: After any confirmed violation, should employment be continued, the employee would be expected to pass a return to work test and be subject to unannounced testing for a designated period of time as a condition of continued employment. This would also be set out in an agreement with the employee. It may also need to involve the union, however a key Ontario ruling said if the union unreasonably withholds their agreement, the company could unilaterally conduct unannounced testing for a two year period.
Random Testing: In certain situations companies have also included a program of random testing for those holding a safety-sensitive position. For example, commercial motor vehicle operators (truck and bus) driving into the US must be under a random testing program; companies may chose to extend this requirement to all drivers, or even include other positions considered to be safety-sensitive. The rulings have confirmed random testing must be limited to safety-sensitive positions.
There are legal issues that need to be taken into account when making this decision both in terms of human rights and arbitration rulings. Random testing of motor coach drivers was upheld by the Federal Human Rights Tribunal. However, a Supreme Court decision stated in a unionized workplace, the company would need proof of a problem in the workplace to introduce random testing, or agreement of the union.
- Applicant Testing: Some companies have made passing a drug (and sometimes alcohol) test a final condition of qualification for a safety-sensitive position. This does not need to be in the employee policy, but can be integrated into the hiring practice. It can also be required for anyone moving from a non-sensitive to safety-sensitive position within the company (upheld in a CN Rail arbitration ruling).
- Site Access Testing: Some companies operating highly safety-sensitive work locations have made passing a test as a condition of assignment to their site. Referred to as "site access testing" it is normally a requirement of an owner site for any worker temporarily assigned to work at the site.
What Drugs are Tested for?
Existing technology has developed methods to accurately test for the presence of a wide range of drugs. Normally company programs test for the following drug classes, which is consistent across Canada:
- opioids (indicating use of heroin or illegal use of opiate products)
- Phencyclidine (PCP)
Additional drugs may be added to this list should the Company conclude there is justification, (e.g. a problem in their workplace or community) and employees will be notified in advance of the change. On an individualized basis, the program may include testing for additional drugs on the advice of a treatment centre or substance abuse professional in a post treatment monitoring program.
Note: The US government required additional opioids be tested for commercial motor vehicles and other regulated operations effective January 1, 2018. These are hydrocodone, hydormorphone, oxycodone and oxymorphone. Fentanyl was not included. All of these can be tested using lab based urine testing and Canadian companies in other sectors are expanding their program to include them. US regulations allowing for lab based oral fluid testing are expected in 2020 and will include these additional opioids as well.
Test Procedures - Drugs in Urine
There are three stages to the testing process: sample collection, laboratory analysis, and medical review and reporting of results. All three stages have been strictly regulated in the United States, and these procedures have been accepted in Canada as meeting the highest standard of accuracy and integrity of the process.
- Urine specimens are collected under highly controlled conditions at a designated collection site by trained personnel who ensure privacy during collection, security and integrity of the sample. There is no direct observation of the collection process. The sample is split into containers which are sealed and initialed by the donor (employee) for shipment to a certified/accredited laboratory for analysis.
- A Custody and Control form is completed at the time of sample collection and follows the sample throughout the process, noting everyone who handles it (with every effort made to minimize the number of persons handling specimens). The employee keeps their copy.
- A point of collection (POC) test is increasingly being used for reasonable cause and post incident testing situations, which allows the initial screen to be performed in the collection cup at the designated collection site. Some companies are also using this technology for any unannounced follow-up testing that is done (post violation, post treatment). If this technology is used, it is important that the device have a range of adulteration checks administered at the collection stage, otherwise tampered samples would not be identified for further analysis in the laboratory.
- If the sample is negative at this screening stage, the drug testing process is complete. If it is not negative, the sample needs to be sealed and forwarded to the lab for further analysis with the completed custody and control form.
- If after a reasonable number of attempts the employee is unable to provide a sufficient sample for testing, the Company Program Administrator will be notified, and arrangements are made for a medical assessment. If there is a medical reason for the situation, the test will be cancelled; if there is no medical reason, this is considered a refusal to test.
- Laboratory Analysis:
- if there is no POC test done at collection, the lab will do a screening test, and if not negative, will perform a confirmation test using highly technical and accurate procedures and equipment called gas chromatography / mass spectrometry (GC/MS). The same confirmation test will be performed at the lab for any POC test that was not negative at the collection site.
- Qualified laboratories must meet established scientific and technical guidelines for all drug testing programs, and therefore, only laboratories accredited and certified are used for this testing program.
- A sample will only be identified by the lab as positive if the presence of a particular drug is at or exceeds the confirmation cut-off level established and accepted for Canadian testing programs.
- Medical Review of Results:
- If the results of the test are negative (drug not identified, or below the cut-off level), the lab will advise the Third Party Administrator who will notify the Company Program Administrator that the test was negative.
- If the results of the test are positive on the confirmation test, or indicate tampering, this is reported as positive/tampered to the Medical Review Officer (MRO).
- The MRO is independent of the lab, and will contact the employee to discuss the result with him/her to determine whether there is an alternative medical reason for the result. If that is confirmed, the result is reported as negative.
- After this discussion, the MRO will then notify the Program Administrator if the result is a true positive, a negative, or confirm that the test has been tampered with.
- If the employee disagrees with the MRO’s conclusion, they have the right to request that their split sample be analyzed. If the original result is upheld, normally the test is at their expense.
How Is Oral Fluid Testing Done?
Oral fluid testing has been used in Canada for certain random testing programs, including the Rapid Site Access Program which is a voluntary random testing program in construction in Northern Alberta. Companies are increasingly looking at using it in other testing situations, but at this point there is no “quick” oral fluid test that is accurate in identifying drug presence. Therefore every sample that is collected needs to go to the laboratory for screening and confirmation testing.
It follows the same collection process as for lab based urine testing using trained collectors, lab analysis, and medical review and reporting of results as noted above.
In this case the collection is observed. The employee is asked to provide an oral fluid sample in a collection device provided at the site, it is sealed and initialed and forwarded to the laboratory with their copy of the Custody and Control Form.
Note: Companies should discuss with their Third Party Administrator the testing options. Increasingly Canadian companies are using the POC quick urine test for reasonable cause and post incident situations and if non-negative for cannabis, they are having an oral fluid sample collected for analysis in the lab. Cannabis can be detected in the urine for longer periods than the other drugs tested, and this tightens the window of detection and indicates more recent use. Normally a sample that is non-negative for any other drug is simply sealed and sent to the lab for confirmation testing.
How Is Alcohol Testing Done?
Breath analysis for alcohol presence is a widely used and accepted technology because breath is the most easily obtained bodily substance and the results are known within minutes of testing. Current-generation breath-alcohol analyzers have excellent accuracy, precision, sensitivity and selectivity or specificity for ethanol in breath specimens.
Collection is handled by a certified Breath Alcohol Technician (BAT). The concentration of alcohol in end-expiratory breath accurately reflects the alcohol in the blood and can appropriately interpret the presence and degree of intoxication or impairment at the time the sample is taken. The test results are displayed and printed using an Evidential Breath Testing Device. The process involves the following steps:
- if necessary, two samples are collected a specific time apart to confirm the blood alcohol correlation;
- if the first test result is below the designated cut-off, the collection process is completed;
- if the first test result is at or above the designated cut-off, a confirmation test will be done after a 15 minute waiting period to ensure the presence of mouth alcohol from recent use of food, tobacco or hygiene products does not artificially raise the test result;
- if the confirmation test is different from the initial test, the confirmation results will be considered the final test result, and in all cases, a breath alcohol testing form will be prepared with a copy for the tested employee; and
- breath test results are reported to the Program Administrator by the TPA.
Testing Procedures – Oral Fluid Alcohol: In those situations when a breath analyzer is not available within a reasonable time period, alternative technology can be considered. Usually an alcohol saliva screen is used to “screen out” negative results. If a donor screens above the cut-off level, an oral fluid sample can be collected, sealed and sent to the laboratory for analysis. The device that can be used for this purpose is the one commonly used for oral fluid drug testing (noted above), called Quantisal and is approved by Health Canada. The Canadian laboratory testing oral fluid has developed the proper conversion process for a blood alcohol equivalent.
Is the Process Accurate?
Yes. The process to collect and analyze breath alcohol samples is fully accurate provided an Evidential Breath Testing Device is used by a certified BAT. The science on which urine drug testing rests is equally solid provided the process is handled by certified and trained personnel, there is no break in the chain of custody, a screen that is not negative is confirmed by GC/MS analysis, and a qualified MRO reviews all lab positive results with the employee.
Although there has been considerable discussion about false positive test results (where a sample is reported to contain a drug that is not actually present above the cut-off level), any possible error in the sample analysis is eliminated through the two-stage screening process, medical review of results, and regular calibration of equipment.
Specimen tampering can take place when an employee knows in advance that he/she will be asked to provide a sample. This is why employees will be escorted to the collection site in a reasonable cause or post incident situation, and not be allowed to access any product that may be used to tamper with the testing process.
Collectors and labs are aware of most, if not all, of the methods used to tamper with a sample (e.g. dilute it to move the drug level below the cut-off, use additives to mask the drug, substitute other samples or substances) and take appropriate steps to minimize or eliminate this possibility through the collection procedures and analysis checks. Therefore, there is no requirement for observed collection. If there is a confirmed attempt to tamper with a test sample, it should be clear that this is a violation of the Policy.