Two high profile court cases involving random testing of workers for drug and alcohol use have brought renewed attention to an ongoing concern: how to protect worker safety while respecting human rights.
Both cases are ongoing. Learn more about the issue, the cases and the implications of the decisions for workplaces considering drug and alcohol testing.
What’s allowed under current law
Random testing of workers for drug and alcohol use is generally considered acceptable by the Canadian Human Rights Commission if the workers are in “safety-sensitive” positions. The commission’s Policy on Alcohol and Drug Testing defines a safety-sensitive position as “one in which incapacity due to drug or alcohol impairment could result in direct and significant risk of injury to the employee, others or the environment.”
Random drug testing is considered unacceptable by the commission if there is no direct and significant risk of injury. In this instance, testing would be viewed as discriminatory, leaving testing programs open to legal challenges. The Canadian Human Rights Act prohibits discrimination on the basis of disability and perceived disability, which includes having a previous or existing dependence on alcohol or a drug but excludes casual or recreational use.
The purpose of random testing is to reduce the risk of incidents and injuries caused by alcohol and drug use. Breathalyzer tests can measure impairment from alcohol, but no equivalent test exists for drug impairment. Urinalysis, the most common form of drug testing, indicates only whether drugs are present in a person’s system. Unlike breathalyzers, urinalysis cannot measure impairment.
Given these and other limitations to random drug testing, the commission’s policy suggests alternatives. It notes that employers concerned about worker impairment, whether due to stress, anxiety, fatigue or drug/alcohol use, focus instead on ways of identifying and minimizing potential safety risks, such as
employee assistance programs
drug education and health promotion programs
off-site counselling and referral services
peer or supervisor monitoring.
Protecting worker safety through such means, rather than random testing, was one of the considerations in a court decision involving Suncor.
Communications, Energy and Paperworkers Union v. Suncor Energy Inc.
Local 707 of the Communications, Energy and Paperworkers Union (CEP) filed a grievance last year against Suncor over plans to conduct random drug and alcohol testing of oil sands employees in safety-sensitive positions. Under the plan, Suncor would have begun testing employees in October 2012, and then contractors and their employees in January 2013. Court documents indicate the plan would affect about 85% of the 3,400 workers represented by CEP at Suncor's oil sands operations.
The local has several concerns with the plans, including a perceived violation of the privacy and dignity of employees. After filing the grievance, CEP also filed an injunction preventing Suncor from implementing the plans until the grievance had been heard.
Suncor appealed the injunction before the Alberta Court of Appeal, which upheld the injunction in a split decision. One of the deciding factors noted in the majority decision was the extent of risk. Suncor already has an employee policy in place that allows for “post-incident” drug and alcohol testing, or in circumstances in which an employee appears to be under the influence of such substances. The decision noted that
only 6% of employees tested under this policy from January 2009 through June 2012 tested positive
of 7 fatalities experience by Suncor’s oil sands facilities from 2000 to 2012, just 3 of those killed were under the influence of drugs and alcohol at the time of their deaths
Suncor has other measures in place to reduce the risk of injuries related to drug or alcohol use.
The majority decision concluded that “there is, therefore, no suggestion of immediate peril caused by wide-ranging drug or alcohol use, or significant risk of loss by accident at the Suncor site so as to swing the balance of convenience in favour of the more intrusive new policy, pending receipt of the arbitrator’s decision.”
Published legal commentary on the decision points out that Suncor introduced the new policy as part of an industry initiative. The intent is to test whether participating firms’ safety performance improve under the new policy.
CEP v. Irving Pulp & Paper
The Supreme Court of Canada is expected to release a decision sometime this year involving mandatory random alcohol testing by breathalyzer of workers in safety-sensitive positions at an Irving Pulp & Paper kraft paper mill. Irving launched the testing program in 2006.
After a member of CEP Local 30 was randomly tested, the union filed a grievance challenging the reasonableness of the policy. The grievance was referred to an arbitration panel, which acknowledged that the mill operation was a dangerous work environment. However, the panel continued, Irving had not demonstrated a risk of harm great enough to outweigh an employee’s need for privacy. More precisely, Irving had not offered enough evidence of prior incidents of alcohol-related impaired work performance to justify adopting the policy. As for the employee whose test triggered the grievance, the results came back negative.
Irving applied for a judicial review of the arbitration panel’s decision. The review quashed the decision on the basis that it was unreasonable to require evidence demonstrating a history of alcohol abuse in a dangerous environment. The union appealed to the Supreme Court of Canada, arguing that using a breathalyzer for a random test amounts to a high level of random personal intrusion.
As with the case involving Suncor, the union is not opposed to post-incident or for-cause testing. The union’s national president, David Coles, has told the media that while unions want a safe workplace and don't tolerate impairment, they don’t see random testing as the solution.
The case has attracted a number of interveners, including the Canadian Civil Liberties Association, Canadian Manufacturers & Exporters, Canadian Mining Association, Canadian National Railway Company, and Via Rail Canada.
Final rulings on these two cases may provide additional guidance to workplaces on when random drug testing programs are and aren’t appropriate. In the meantime, if your workplace has or is considering random drug testing, ensure the testing is in line with what’s permitted and does not violate the privacy and human rights of employees.
Watch for continued coverage of these cases in HSO Network News and HSO Network Magazine.