Canada: Alberta, Canada Court Decides Employer Can Randomly Test Employees In Safety-Sensitive Positions For Drugs And Alcohol

In Phillips v. Westcan, 2020 ABQB 764, the Court of Queen's Bench for Alberta denied an employee's application for a permanent injunction against his non-unionized employer to prohibit the employer from randomly testing its employees for drugs and alcohol. Phillips v. Westcan is an important decision for non-unionized employers in Canada that wish to make random drug and alcohol testing a condition of the employment of employees in safety-sensitive positions, as it provides guidance for how they may do so.

Background

The employee commenced his employment with the non-unionized employer in 2013 as the driver of a heavy truck transporting dangerous goods over long distances. The employee left his job in 2015 but resumed his employment with the employer later that year.

The employer had been conducting random drug and alcohol testing since at least 1999. Because of the distance of his trips, the employee did not have direct contact with his supervisors for extended periods. This prevented his supervisors from having frequent opportunity to observe indications of impairment, and made reasonable suspicion testing virtually impossible. In addition, post-incident testing was impractical because by the time a tester could reach the distant site of an incident, any drugs or alcohol in the employee's body would have at least partially dissipated.

Drug and Alcohol Policy

At the commencement of the employee's employment in 2013, the employer's drug and alcohol policy provided, among other things, that:

• Random testing would apply to all positions deemed safety-sensitive;
• All company drivers were deemed safety-sensitive; and
• By continuing employment with the company, the employee accepts the terms of the drug and alcohol policy.

Although the policy was revised further, the revisions did not alter the provisions listed above regarding random testing.

Expectation Agreement

The employee signed an expectation agreement that provided that drivers were expected to understand and abide by the employer's policies and procedures including the drug and alcohol policy, and required the employee to acknowledge that he read the agreement, had an opportunity to ask questions about it, and understood that if he became a driver for the employer he would be held to the expectations described in the agreement.

Offer of Employment

When the employee was offered employment with the employer in both 2013 and 2015, he signed offer letters that provided they were subject to the employee's compliance with the employer's corporate policies, and that his position was deemed safety-sensitive.

Operations Training Program

When he accepted employment with the employer in 2013 and 2015, the employee participated in its operations training program, which included an orientation in which new employees were told that random drug and alcohol testing would apply to positions deemed safety-sensitive. During this training, the employee received a grade of 100% on a policies and procedure examination, which included the following question to which the employee responded "all of the above":

Safety sensitive employees may be subject to alcohol and/or controlled substance testing:

Decision

The court decided that the employee had no enforceable right to stop the employer from randomly testing him or anyone else and accordingly the employee was not entitled to an injunction. The court reasoned that the case turned on the following questions, which it answered as follows:

Question: Is it a term of the employee's contract of employment that the employer would randomly test its employees, including the employee, for drugs and alcohol?

Answer: Yes. When he accepted his most recent offer of employment from the employer, the employee understood and agreed that it was a condition of his employment that the employer would randomly test him for drugs and alcohol. The employee expressly agreed to be bound by the employer's policies. He knew they included random drug and alcohol testing for drivers because he was informed of this in the Expectation Agreement that he signed in 2015, and correctly answered a question about drug and alcohol testing when he participated in the operations training program.

Question: If so, is that term of the contract enforceable?

Answer: Yes. An employer and employee may freely agree to conditions of employment, provided the conditions comply with employment standards, human rights and other legislation, and the conditions are not otherwise unconscionable. The employee did not raise that the conditions did not comply with employment standards, human rights and other legislation, and random drug and alcohol testing is "not at all divergent from community standards of commercial morality" (para 34), or an unconscionable term in an employment agreement for a driver transporting dangerous goods over long distances without supervision.

Question: If not, is the employer entitled to impose random testing on the employee?

Answer: Yes. Even if there was no enforceable provision in the employee's employment contract pursuant to which the employee agreed to random drug and alcohol testing, the imposition of random drug testing by the employer could be justified if there was "evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace,"¹ and/or if the employee's work was dangerous, unsupervised, and remote.

Bottom Line for Employers

Phillips v. Westcan provides the following important reminder to non-unionized employers that would like to make random drug and alcohol testing a condition of the employment of employees in safety-sensitive positions:

• In their employment agreements with such employees, employers should include an enforceable provision clearly stating that the employee has agreed to be bound by the employer's drug and alcohol testing policy as a condition of their employment, and obtain the employees' express agreement to the provision;
• During any training of such employees, the employees should be reminded that they are bound by the employer's drug and alcohol testing policy as a condition of their employment, and their express agreement to be so bound should be obtained; and
• When there is evidence of enhanced safety risk, the employer may be able to unilaterally impose random drug testing on employees in safety-sensitive positions. Although each case is fact-specific, in Phillips v. Westcan the factors that influenced the court to decide that the circumstances justified the unilateral imposition of random drug testing included, among other things, the danger involved in the employee's work and the fact that it was performed without supervision.

Non-unionized employers that would like to make random drug and alcohol testing a condition of the employment of employees in safety-sensitive positions are strongly encouraged to seek the advice of lawyers with expertise in this complex area of employment law.

Footnote

1 Communications, Energy and Paperworks Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. 2013 SCC 34, at para. 31).

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