With the legalization of marijuana looming on the horizon this summer, concerned employers are thinking about how to keep drugs out of the workplace. While random workplace drug testing might seem like an attractive option, in Canada the law remains unsettled on what’s permitted. The most prominent legal battle over random drug testing in Canada has been largely centered on Alberta’s oil sands.
The saga of Suncor Energy & Unifor, Local 707A
In 2012 Suncor Energy Inc. (Suncor) announced that it would be implementing a random drug and alcohol testing program on sites near Fort McMurray. The union (Unifor) grieved the policy on grounds that it was a violation of the workers’ privacy. Unifor was successful in the arbitration that followed.
Following the test set out by the Supreme Court in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd., Suncor was unable to demonstrate sufficient safety concerns to justify random testing. See the arbitration decision here: Unifor, Local 707A v. Suncor Energy Inc., Oil Sands (Random Testing Grievance).
Suncor subsequently applied for and was successful on judicial review. In 2016, the matter was sent back to arbitration for a new hearing. The decision of the original arbitration panel was found to be unreasonable, primarily on the basis that they had failed to consider general evidence of a substance abuse problem and had emphasized a requirement for significant evidence of a serious problem.
Unifor appealed the judicial review decision to the Alberta Court of Appeal, who agreed with the judicial review decision and directed that the matter be sent back for a fresh arbitration.
Suncor unsuccessfully attempts to re-institute the policy
Meanwhile, Suncor decided to take another stab at re-instituting the random drug testing policy. Previously Unifor had obtained an injunction against implementation of the policy, pending the conclusion of the grievance.
Unifor successfully obtained an extension of their injunction which Suncor then appealed to the Alberta Court of Appeal. The decision of the Alberta Court of Appeal, released this February, upheld the injunction but was split.
Take away for employers
It’s clear that in unionized environments the invasion of privacy imposed by random drug and alcohol testing will not be taken lying down. The drug and alcohol testing landscape is likely to get more complicated with the legalization of marijuana. While we will continue to watch this case, for now it seems that to have a hope of successful random testing employers will need to be able to demonstrate evidence of a drug and alcohol abuse problem related to safety-sensitive jobs.
As with alcohol issues, the human rights, privacy law issues and the implementation of rules around the issue of drugs (legal or not) will all need careful consideration. The best big-picture approach is to address the issues of objective impairment and objective job performance, and stay clear of looking to monitor the morality of substance abuse. And perhaps most importantly, any addiction and medically required drugs always need to be placed in a very separate category of disability related steps and policies.