Canada: DARRPP: The New Frontier — Random Drug Testing

Alcohol and drug testing, a controversial labour relations issue in Alberta — as in other jurisdictions — has generated numerous labour arbitrations and human rights issues for Alberta-based employers.

The megaprojects in northern Alberta have created ripe environments for the potential misuse of alcohol and drugs in the workplace. With large construction projects, virtually all of which are of a safety-sensitive nature, and large industrial workforce living in northern work camps and earning significant amounts of compensation, the misuse of alcohol and drugs is a major concern for project owners (typically major energy companies), as well as for the contractors and subcontractors who employ thousands of employees on worksites.

Alberta has generated numerous arbitration awards in terms of workplace alcohol and drug testing. Some forms of testing have generally been accepted and used in situations involving:

  • a reasonable cause to suspect that an employee is under the influence of drugs or alcohol;
  • testing at time of hiring;
  • entry onto the worksite;
  • a return to work; or
  • the occurrence of an accident or near miss.

Random drug testing has not, as a general rule, been employed in Alberta workplaces. It has been used in cross-border Canadian trucking and ground-transportation industries for a long time and is frequently used in the United States.

The challenge in Alberta has always been the balance between maintaining a safe workplace pursuant to occupational health and safety legislation and, at the same time, not running afoul of the Alberta Human Rights Act.

Several years ago, the Construction Owners Association of Alberta (COAA) developed the Canadian Model for Providing a Safe Workplace (Canadian Model), which sets out alcohol and drug guidelines and work rules and represents a compendium of best practices. A similar approach with substantially similar guidelines and work rules was subsequently adopted by Enform, the Safety Association for Canada's Upstream Oil and Gas Industry.

Many major Alberta-based employers, including unionized employers, have used the Canadian Model as the basis for their own alcohol and drug testing policies.

In late 2007, the Alberta Court of Appeal (ABCA), in Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, reviewed a human rights case involving a pre-employment test of a recreational marijuana user. The ABCA upheld the right to test over objections based on human rights considerations on the basis that, "extending human rights protection to situations resulting in placing the lives of others at risk flies in the face of logic." Thus, workplace safety trumped human rights in that case.

Mandatory random testing was recently accepted by the New Brunswick Court of Appeal in CEP v. Irving Pulp & Paper (leave to appeal has been granted by the Supreme Court of Canada (SCC) in March, 2012) because a pulp and paper mill is inherently a "dangerous workplace." The union asserts that this criterion is insufficient to justify the intrusive nature of random testing.

Very new to Alberta is the Drug and Alcohol Risk Reduction Pilot Project (DARRPP), which is a two-year initiative aiming to evaluate and report on the effectiveness of comprehensive workplace alcohol and drug programs that will include random workplace testing.

DARRPP is led by a multi-stakeholder working group that includes major oil sands industry employers and labour providers. Working from a shared model, participating employers will introduce and monitor random workplace testing programs for safety-sensitive positions and share statistics related to their implementation.

DARRPP participants will balance the need to reduce safety risks with the responsibility to uphold human rights and privacy. Participating employers all have alcohol and drug programs that ensure employees who test positive are treated fairly and receive appropriate aftercare if they are dependent.

DARRPP was officially announced on June 20, 2012. Over the summer and early fall of 2012, participating companies will be putting appropriate testing systems and processes in place, with implementation of pilot testing programs expected in late 2012 and early 2013.

DARRPP will report its findings and recommendations to participants, government and other stakeholders in 2014, with a goal of recommending a useful industry policy framework based on the results of the pilot.

COAA and other industry players established DARRPP as an independent, multi-stakeholder group. During the two years leading up to the project's launch, DARRPP's founders solicited input from human rights and privacy agencies and independent experts, including the Alberta Human Rights Commission and the Office of the Information and Privacy Commissioner of Alberta, to make sure the pilot addressed social concerns and legal requirements.

Alcohol and drug testing will remain an important labour relations issue, at least until the SCC rules on this issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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