Legal news and trends for Canadian in-house counsel and c-suite executives
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especially at companies with workers engaged in potentially dangerous tasks. "Even if they're not considered to be in heavy industry or the resource industry or transportation, that doesn't mean that in a retail environment people should be showing up unfit and then working with packaging, working with equipment behind the scenes," says Butler. "You can't turn a blind eye to the issue; it's out there. The key is to man- age it appropriately for your business." Butler says fears of employee backlash might hold many companies back. But in most cases, employees are aware of substance-abuse issues in their workplace and many are surprised by a lack of guid- ance on the prohibition of alcohol and drug use while on the job. "They expect management to address it," says Butler. The worker response may be dif- ferent in a unionized setting, how- ever. A position paper posted on the Communications, Energy and Paperworkers Union of Canada web site shows the organization's strong opposition to drug testing. "Mandatory workplace drug testing is an attempt to implement a simple solution to a very complex problem," the document states. "It will not work. The push to test has a lot to do with which groups in society are perceived to wield power, and the particular moral values and prejudices that these groups hold." Yet the growing list of court and arbitration decisions may help in-house counsel create a strong testing poli- cy that will withstand complaints. At the same time, workplace safety is a growing priority for organized labour. "It's refreshing to see unions taking the position that they're supportive of a safe work environment," says Mike McCreary, a union-side labour lawyer at Toronto's Watson Jacobs McCreary LLP. "Perhaps 50 years ago or 40 years ago employers would bump up against some resistance by unions in taking steps to make a workplace more safe. Not the case nowadays." That's not to say unions are prepared to sign off on any means of accomplishing safety, especially when it comes to A&D testing. This point hits on what McCreary considers the primary tension between the two sides on this issue. Unions believe "softer" methods of detecting impairment on the job are the best solution. They sup- port the use of observational techniques by managers to detect workers who may be drunk or high while at work. Under this approach, an A&D test — and coun- selling — may follow a discussion with an employee who appears to be impaired, says McCreary. But he says employers seem to want more certainty in maintaining an alco- hol-and-drug-free work environment. "Employers want to be able to ensure that their workforce is unimpaired, full stop," says McCreary. "Some employers may say, 'Well, if we've got a problem, we want to give everybody a breathalyz- er, to give certainty to the issue.' Unions view that as intrusive." It's unlikely that workers and employ- ers will find a compromise any time NOT TOO BIG. NOT TOO SMALL. We are a full-service business and litigation law rm that combines Bay Street expertise, leadership and teamwork. Our fees are simply more realistic, transparent and affordable - the result of lower overhead, ef cient work ow and a right-sized approach to billing. We have an innate appreciation for your unique challenge, and the ability to build a team that's… JUST RIGHT If this sounds like the right t for you, you've discovered Right-sized Thinking® Let us show you where it can lead. Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Labour & Employment • Wills, Estates & Trusts . 90 Burnhamthorpe Road West, Suite 1600 Mississauga, ON L5B 3C3 28 • OCTOBER 2010 Untitled-3 1 INHOUSE 8/24/10 9:55:25 AM