The Alberta Arbitration Board released its decision with respect
to the policy grievance filed by Unifor, Local 707A, against the
introduction by Suncor Energy Inc., Oil Sands of random alcohol and
drug testing (Policy) of safety-sensitive employees at Suncor oil
sands operations. Unifor grieved the Policy, asserting that it is
intrusive and extraordinary because it subjects all employees to
drug and alcohol testing, regardless of any precipitating event. On
the other hand, Suncor defended its Policy and argued that it met
the test from the Supreme Court of Canada's recent decision
Communications, Energy and Paperworkers Union of Canada, Local
30 v. Irving Pulp & Paper, Ltd, 2013 SCC 34, by
establishing "evidence of a problem with alcohol and
drugs" in its workplace.
The Board allowed Unifor's grievance and rejected the
Policy. With respect to random alcohol testing, the Board found
that Suncor's positive alcohol tests did not establish a
significant problem or legitimate safety risk. In addition,
Suncor's unparticularized evidence failed to demonstrate
evidence of a problem with alcohol with respect to its Unifor
employees. Overall, the Board found Suncor's Policy to be an
unreasonable exercise of management rights.
With respect to random drug testing, the Board found that
Suncor's testing method of urinalysis failed to identify
current impairment. Suncor's testing method identified
employees who recently used drugs, but this did not meet the
threshold of a legitimate business interest which would justify the
significant intrusion into employees' privacy. The Board also
rejected Suncor's argument that the "out of control drug
culture" justified random drug testing. Overall, the Board
rejected Suncor's random drug testing for a number of reasons,
including failure to include a time limit for review, failure to
target as narrowly as possible, failure to use the most accurate or
least intrusive testing methods and failure to include provisions
for communicating false positive results to employees.
The Board went on to discuss what would have amounted to a
reasonable Policy. The Board stated that principles from
Alberta's Drug and Alcohol Risk Reduction Project should have
been applied, including a time-limited trial project, measurement
of effects and results, respect for employees' dignity, a
dispute solution mechanism, a clear "under the influence of
alcohol or drugs" prohibition, consistent training and oral
Suncor intends to seek judicial review of this
decision by the Board.
What does this mean for employers?
The Unifor and Suncor decision confirms that random drug and
alcohol testing is extremely difficult for employers to justify.
However, the decision also provides useful guidance in crafting a
reasonable and enforceable policy. Employers may consider creating
drug and alcohol policies that include: a time-limited trial
project, the measurement of effects and results, safeguards to
maintain employees' dignity, a dispute solution mechanism, an
"under the influence of drugs" prohibition, consistent
training and oral fluid testing.
Further updates will be released when this decision is
The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
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