Suncor Energy Inc. has recently attempted to implement a mandatory, random drug and alcohol testing policy among employees in “safety-sensitive” or “specified” positions at their oil sands work site Fort McMurray, Alberta. These positions are held by about 82 percent of the 3,383 union members employed at the site.
The union responded by filing a grievance objecting to the policy, saying it is inconsistent with the collective agreement, the common law, Alberta statutes, and the Charter. The arbitration board hearing the grievance had the task of determining whether this mandatory random testing policy was justified in the circumstances. They based this decision on the precedent established last year in the Supreme Court of Canada decision of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper.
Irving Pulp & Paper established that for a random testing policy, like this one, to be reasonable, there needs to be evidence from the employer of a “serious” problem with alcohol and drug use in the workplace as well as a causal connection between this and its accident, injury, and near-miss history. The policy employed needs to be proportionate to the actual benefits and risks in the circumstances.
With respect to random alcohol testing, it was reiterated from Irving that this constitutes a serious invasion of employees’ privacy that must be justified by the safety gains of the proposed policy. Given that the previous positive tests for drug and alcohol use in this workplace were even lower than those in Irving, where no “serious” problem was found, the potential benefits of this policy were not substantial enough to justify forcing random alcohol testing on employees.
Furthermore, drug testing was approached differently than alcohol testing because, while just as invasive, drug tests were found to be much less useful or informative from a workplace-safety perspective than those for alcohol use. Finding evidence of drug use in a urine sample does not indicate impairment of job functions at the time the test was actually taken. While it shows drug use, it does not show how much or when the drug use occurred, and is therefore not very helpful in determining if workers’ drug use is creating unsafe situations in the workplace. In contrast, breathalyzer testing for alcohol gives information about the person’s current state and level of impairment.
Ultimately, there was insufficient evidence of a “serious drug issue” among the unionized workers to justify random drug testing. While the administration claimed that there was an “out of control drug culture”, the statistics presented were even lower than those in Irving, where it was found that the minimal safety gains a random testing policy might afford could not justify the invasion of privacy, and they did not indicate whether it was the unionized employees at issue or others who had tested positive.
It was stated that this grievance was only related to the employees in the union and that for the policy to be justified, there would have to be evidence of a serious drug or alcohol problem not in the workplace in general, but among these workers specifically. However, it should be noted that in addition to not being specific to the unionized employees, the statistics offered by the management as a basis for the policy were so low that even if they were shown to apply to the union workers, the random testing policy would likely still not have been allowed.
As stated in the Suncor and Irving Pulp & Paper decisions, breathalyzer and urine tests are considered very invasive and violate an employee’s rights to privacy; there is a high standard that must be met in order to justify these tests.
By Marty Rabinovitch
Devry Smith Frank LLP