Nobody likes tests. I remember school days when pop quizzes always meant wondering if you remembered everything, or whether what the teacher taught that day you were sick would be on the questions she asked. In today’s workplace, tests are still looked upon as something you wish you could just skip, or avoid altogether. This is especially the case with random drug testing in the workplace.
In 2013, the Supreme Court of Canada released its decision in Irving Pulp, a case which arose when the union representing Irving’s workers brought a grievance challenging the company’s mandatory random alcohol testing policy. The policy had been introduced by the company without notice or consultation with the union and required that 10% of the employees in safety-sensitive positions undergo random breathalyzer testing over the course of a year. The issue before the court was whether the employer/company could require its employees to be tested in the absence of evidence of substance use and abuse. The Supreme Court allowed the grievance, holding that the little evidence produced by Irving Pulp of substance abuse problems with its workforce was not sufficient to override the privacy rights and interests of its employees.
This 2013 decision, though it emanated from our highest court, was not the end of the story. Issues regarding an employer’s right to randomly test its employees for drugs and alcohol continued to be disputed. Employers continued to face an uphill battle and it has proved to be a difficult task (some would say impossible) to develop an enforceable drug and alcohol testing policy. By way of background, this was not the first time that companies, primarily in the energy sector, have attempted to institute random drug testing. And, by and large, they have been rejected by courts and arbitrators.
There is no doubt that random substance testing can infringe upon the human rights and privacy concerns of employees. But what of safety issues and risks of injury in the workplace? With evidence suggesting that random drug testing is an effective deterrent to substance use and abuse in the workplace, it remains an important issue for employers, particularly where there are significant safety concerns.
In March 2014, the majority of the arbitration board released its decision in Suncor v. Unifor, Local 707A. This decision was the first reported decision on random testing since the Supreme Court weighed in on the issue in 2013. The arbitration panel found Suncor’s policy to be unenforceable and an unreasonable violation of employees’ privacy. Not satisfied, the employer sought judicial review of the decision and the courts were given another kick at the proverbial can.
On May 18, 2016, the Alberta Court of Queens Bench-yes, the very province that brought you Irving Pulp, quashed the arbitration panel’s decision and ruled in favour of Suncor. In doing so, Justice Blair Nixon ruled that it wasn’t just evidence of the drug and alcohol use and abuse by the affected union bargaining unit which was to be considered. Rather, the employer could, in implementing its policy, rely upon incidents of drug and alcohol abuse by ALL employees of Suncor, including the non-union contract employees. This meant that evidence of approximately 2/3 of the workers in Suncor’s oilsands operations could now be considered.
On that basis, Suncor had presented evidence of 2,276 drug and alcohol-related “security incidents” over the period between 2004 and 2013, as opposed to the twelve incidents the union sought to limit the evidence to by restricting the analysis to the bargaining unit members. The case has, therefore, been sent back to a new arbitration panel for consideration. The union, as anticipated, has announced its decision to appeal the court’s ruling.
What does this mean for employers looking to implement random drug and alcohol testing?
Well, there is still a long road ahead, with potholes of uncertainty, and employers should certainly not assume that it will be easy.
The test established by the Supreme Court in Irving Pulp remains the test to meet. Employers must continue to strike a balance between the health and safety concerns of the workplace and the privacy interests of the employees. In particular, the employer must demonstrate the presence of enhanced risks in the workplace, such as a general problem with substance abuse in the workplace itself. This is not a “significant” or “serious” substance abuse problem as the Suncor arbitration panel had held. Again, clear as mud, isn’t it? But the door certainly has been opened for employers to show a more general causal connection between substance abuse issues across its entire workplace and its obligations to ensure and provide a safe and healthy work environment.
It is important to note that the questions being asked and answered by the Irving Pulp, Suncor and related decisions relate to random drug and alcohol testing. Policies and procedures which speak to testing of employees after workplace incidents and accidents are generally unaffected by these recent decisions.
It remains to be seen whether the new arbitration panel will determine that safety concerns trump privacy rights. Rudner MacDonald will, of course, keep you advised of changes as they happen. In the meantime, call our lawyers to assist you in drafting your policies and to answer your questions.
By Stuart Rudner and Cynthia Ingram, Rudner MacDonald LLP
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