An Alberta Arbitration Unifor Local 707 v. Suncor Energy Inc. ("Suncor"), released in late March, after a year of hearings, says that random drug and alcohol testing for Suncor's OIl Sands workers was unreasonable due to a lack of evidence of a significant substance abuse problem in Suncor's unionized workforce.
Suncor introduced random testing as part of a larger program aimed at achieving work site safety. Random testing was done by breathalyser for alcohol testing and by urinalysis for drug testing. Suncor argued random was the only way to improve safety and guarantee an impairment free worksite.
The Union challenged the policy, through a policy grievance and requested an injunction. The injunction was granted in October 2012, and upheld by the Court of Appeal in January 2013. It prohibited Suncor from engaging in random drug and alcohol testing until the policy grievance was decided.
The Issue: Demonstrating a Substance Abuse Problem to Justify Policy
Last summer the Supreme Court of Canada issued its judgement in CEP, Local 30 v. Irving & Paper, stating that safety concerns alone do not justify a random alcohol testing policy. A proportionality test must be applied to determine whether the safety benefits gained outweigh the impact on employees' privacy rights. The Court identified only one extraordinary circumstance where testing may be justifiable – where the employer could demonstrate a significant alcohol abuse problem among its workers. The issue here was whether Suncor could demonstrate a substance abuse problem to justify its random testing policy.
What did the Board say?
The Board accepted a statement from the Mechanical Contractors' decision that the employer must establish a policy will probably improve workplace health and safety – uncertain or speculative potential gains do not justify random testing. Ultimately, the Arbitration Board held that the small positive effect random testing may have on improving safety at Suncor's oil sands worksites did not outweigh the important privacy interests of employees. Suncor's policy was unreasonable because:
1. Insufficient evidence of significant drug or alcohol problem in the unionized workforce
The Board held the following evidence was insufficient to demonstrate a significant substance abuse problem:
- High amounts of drugs were imported into the Fort MacMurray area. This did not prove drugs were flowing to Suncor workers, nor did the evidence show a comparison to drug traffic in other communities.
- There had been 14 positive alcohol tests of Suncor workers over a 9 year period. The Board noted that the positive tests either involved non-union or unidentified workers, and Suncor had failed to establish a causal connection between these positive results and its safety record.
- Three of the 20 fatalities on the worksites could be directly linked to the use of drugs or alcohol by workers. All involved contractors, not union employees.
- Between 2004 and 2013, there had been 2276 recorded "security incidents" involving alcohol and drugs, including finding drug paraphernalia and items used to defeat urinalysis testing. However, the "security incidents" did not identify involvement of union workers.
The Board also noted that:
- Much of Suncor's evidence relied on what happened in the worker camps, and most unionized employees did not reside at the camps.
- Suncor did not enter into evidence its current safety record. The Board inferred from this that there was no pressing safety concern at the Oil Sands Operations.
Notably, the Board accepted the Union's argument the policy could not be justified because Suncor failed to demonstrate a substance abuse problem specifically among Suncor's unionized workforce – a requirement not discussed in Irving.
2. Not clear, consistent or fully comprehensible
The Board stated there were several inconsistencies and confusing exceptions that rendered the policy fundamentally difficult for workers to understand.
3. Urinalysis was an extremely invasive procedure and there were no clear safety gains that could justify invading employees' privacy rights
The Board also confirmed that drug testing by way of urinalysis is inappropriate because it does not measure the current impairment of a worker, and noted it is an unacceptable testing method because:
- Taking bodily fluids without a person's consent has been recognized by the Supreme Court of Canada as highly intrusive and an affront to an individual's dignity.
- The test cannot give positive results immediately. Non-negative results must be sent to a lab for further testing.
- The window of detection for drugs is highly variable – urinalysis can only indicate exposure to a particular drug, it cannot identify when exposure occurred, how much was ingested or the effects on the worker.
Judicial Review Likely Pending
A dissenting member of the Arbitration Board, who would have found that Suncor had met the Irving test by "overwhelmingly" demonstrating a drug and alcohol problem among its workforce, also issued a 71 page decision.
Suncor has said it is seeking judicial review. With a split Board and two lengthy decisions, it will likely be a while before any judicial review decision is rendered.
What this means to you
For unionized employers, the effect of the Irving and Suncor decisions is that it is difficult to justify the unilateral introduction of random alcohol or drug testing policies, and it can be expected that any random testing policy unilaterally introduced will be challenged. The only recognized exception in the both cases is where there is a history of substance abuse among workers – and the Board in Suncor indicated the problem must exist among unionized workers – and that abuse has had a significant and proven effect on safety at the worksite.
Neither decision specifically precludes negotiating the creation of a random testing policy with the Union. However, the ability to do so faces many roadblocks. Unions may insist on an employer demonstrating an existing substance abuse problem among bargaining unit employees before agreeing to any policy. Given the Board's comments on urinalysis, the method of testing may also be a point of contention, and drug testing still cannot measure the present impairment of employees, leaving open the question of its usefulness as a safety measure.
For non-union employers, theses decisions serve as the canary in the coal mine. As Human Rights Tribunals, Privacy Commissions the courts begin to hear more challenges from individual employees, the principles outlined in Irving and Suncor will likely apply as these decision makers balance the privacy interests of employees with potential safety gains.
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