Pubdate: Fri, 21 Dec 2001 Source: National Post (Canada) Copyright: 2001 Southam Inc. Contact: http://www.nationalpost.com/ Details: http://www.mapinc.org/media/286 Author: Sarah Schmidt Bookmark: http://www.mapinc.org/testing.htm (Drug Testing) RIGHTS AGENCY STUDIES BROKERAGE'S DRUG TESTS U.S.-Based Firm's Pre-Employment Screens Criticized The Ontario Human Rights Commission is considering launching an investigation into a brokerage firm that requires pre-employment drug tests. Francois Larsen, spokesman for the commission, said it has the "legal authority to initiate an investigation" into the drug-testing policy of Edward Jones, a U.S.-based firm with offices across Canada. "We are aware of this situation because it's in the public domain, and we are considering our options." Edward Jones, a Missouri-based company, imported its zero-tolerance drug policy into Canada in 1994, when it opened its first office. It employs about 250 financial advisors in Canada and 8,000 in the United States and Britain. Edward Jones requires applicants to "consent to a pre-employment drug screen in accordance with the firm's current drug testing policy." Workplace drug and alcohol testing is common in the United States, but Canadian courts have severely restricted their use, including pre-employment drug tests in the financial sector. Alan Borovoy, general counsel for the Canadian Civil Liberties Association, said the human rights commission has a duty to probe the drug policy at Edward Jones's Canadian branch, based in Mississauga, Ont. "An investigation ought to proceed on its own hook. It doesn't have to wait for a complaint. Once these things are drawn to the commission's attention, the commission owes it to the code to address these things, and not knowingly allow these things to continue." An Ontario man who is considering applying to the firm is furious about the requirement but said it should not be up to him to hire a lawyer to contest the policy. "As a private citizen, I shouldn't need to rely on my own devices to get a law obeyed and to protect my rights. That should be the job of the government and the commission," said the man, who did not want to be identified. Ontario Human Rights Commission policy states that drug testing is prohibited as part of the applicant-screening process. It is only justified if the employer demonstrates that pre-employment testing provides an effective assessment of the applicant, and should not be directed toward simply identifying the presence of drugs or alcohol in the body. The human rights code identifies drug and alcohol addiction as a disability. Discrimination on that basis is illegal, and the employee or applicant must be accommodated. Edward Jones employees said applicants who fail the mandatory drug test are not hired. "If you don't pass the drug test, you don't get hired," said a company official in Missouri. Todd McIntyre, an Edward Jones broker in Edmonton, said the same principle applies in Canada if an applicant fails the drug test. "They've been fired. They were pretty devastated by it. That's Edward Jones. They're a great firm. I love them, but they're very conservative," he said. Mr. McIntyre added he does not object to this tough-love approach. "I'm not against it at all. That's simply because my feeling on this is similar to theirs. If that's the process they want to use, that's fine with me." Edward Jones officials in Canada declined comment. In July, 2000, the Ontario Court of Appeal declared alcohol and drug testing by companies to be a violation of the province's human rights code. The court said a Breathalyzer is permissible for people in high-risk jobs - -- such as oil refinery workers, pilots and train engineers -- because it determines whether someone is impaired at the moment the test is administered, the judges said. However, because drug testing only measures past use, not present, future or likely impairment on the job, the court ruled the defendant, Imperial Oil, could not justify pre-employment testing or random drug testing for employees. Imperial Oil suspended its screening test. In 1998, the federal court ruled an eight-year-old drug-testing policy at the Toronto-Dominion Bank to screen newly hired employees was discriminatory. The bank dropped its pre-employment drug test. The Canadian Human Rights Commission is reviewing its own drug testing policy. Recent court decisions "have put into question whether drug testing, including pre-employment and random testing, can ever be justified," the commission said in a consultation paper. The current policy states that drug testing, including pre-employment screens, cannot be justified for positions where safety is not an issue because drugs tests do not measure the level of impairment arising from drug use and therefore cannot be used to judge the ability of an individual to perform the job. In areas where testing is justified because the job is safety-sensitive, employees who test positive must be accommodated. - --- MAP posted-by: Beth