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Random drug, alcohol testing takes centre stage

By David Myrol
| www.cos-mag.com

New changes to administrative penalties, fines also in place

Health and safety professionals in the oil and gas industry need to make sure they stay abreast of any changes and updates to legislation that may affect them, as well as any cases making headlines. Below are some of the current legal developments affecting the industry.

Random drug and alcohol testing

Drug and alcohol testing was again the subject of a legal dispute in Alberta. An Alberta arbitration board has concluded that the random drug and alcohol policy imposed at a Suncor Energy oilsands operation was an unreasonable exercise of the employers’ management rights.

The policy was introduced in May 2012 as part of a comprehensive approach to managing safety on the work site. Random testing through urinalysis was implemented to minimize the chances that workers would work while impaired.

Following a Supreme Court of Canada decision, the board agreed that unless there are extraordinary circumstances, an employer may not unilaterally impose random drug and alcohol testing even where the work is inherently dangerous. Extraordinary circumstances will exist if alcohol and drug abuse is known to be pervasive. Evidence must exist to support an employer’s claim that a problem exists — mere apprehension or suspicion of a problem is not enough.

Suncor was not able to rely on the extreme danger of the work site as the basis for asserting the existence of an extraordinary circumstance and, therefore, the right to the exception allowed for by the Supreme Court of Canada. The expert evidence presented by the employer on the effects of impairment, the deterrent effect of the policy and the lack of alternative effective and efficient methods to identify problems was not sufficient to overcome the evidentiary hurdle necessary for the employer to prove. Instead, the arbitration board ruled against Suncor’s policy suggesting specific evidence of a problem at that specific work site will be necessary to implement a random drug and alcohol testing policy. The evidence of the high rate of alcohol abuse in the Fort McMurray, Alta., region, the results of previous testing from the site and information about prior accidents resulting in injury or death was still not specific enough.

The pivotal evidence that was missing, according to the board, was evidence showing there was a problem at the work site. Instead, the employer’s evidence would have required the board to draw an inference of a problem. Nothing showed a direct connection between positive test results presented by the employer and the safety record of the work site. To prove an extraordinary circumstance, the employer would have been obliged to present evidence of a specific problem at that specific work site which involved the specific bargaining unit in question. The statistics presented by Suncor included positive tests of employees from outside the bargaining unit as well as incidents which occurred in the camp accommodations, neither of which was sufficient to prove there was a problem of impairment at the work site during working hours.

Another issue the board identified was the fact that urinalysis does not indicate current impairment for many drugs, such as marijuana, where usage can be detected weeks after being consumed. Where the presence of drugs was measured after a workplace incident through testing, the statistics presented did not convincingly demonstrate that the employee involved was actually impaired and the incident was the result of impairment.

The detrimental impact on the privacy rights of employees in the circumstances based on the evidence before the board was too great to justify the random drug and alcohol testing policy.

This decision is another blow to employers who wish to take a proactive approach to impairment issues at the workplace. That said, the decision does provide indications as to what will be necessary to reach the threshold set by the Supreme Court of Canada to prove that extraordinary circumstances exist:

• Employers should adopt tests that provide accurate and quantitative results but which also have the least impact on employees’ privacy interests.

• All testing results collected by employers, both positive and negative, should be thoroughly documented to record the time and location where the results were obtained to make sure positive tests are connected to working hours and specific incidents are associated with the test.

• Random testing policies should be introduced in accordance with the Drug and Alcohol Risk Reduction Pilot Project (DARRPP) principles which involve a time-limited trial project, measurement of effects and results, maintaining respect for the dignity of the employees, a dispute resolution mechanism, a clear and unequivocal “under the influence of alcohol and drugs” prohibition, consistent training and using oral fluid testing as the testing method.

It is a positive sign that the arbitration board in this dispute endorsed the DARRPP principles; however, there is no absolutely clear manner in which employers can implement random drug and alcohol testing policies which will be deemed acceptable by courts and labour tribunals and which will clearly enable the employer to avoid a legal dispute.

The Supreme Court has stated that if the contract of employment or collective agreement includes terms which permit the employer to randomly test employees, this will be valid and enforceable provided the employer acts reasonably and with respect for the privacy interests of employees.

Administrative penalties

As of Oct. 1, 2013, Alberta’s occupational health and safety legislation was amended to allow officers to issue administrative penalties against any person regulated by the legislation (such as workers, contractors, employers, prime contractors and suppliers) for violating or failing to comply with occupational health and safety legislation. The purpose of the amendments is to give occupational health and safety officers the ability to respond to infractions in a less heavy handed fashion compared to laying charges and seeking a conviction.

Prior to the amendments, OHS officers were in a difficult position for relatively minor offences which had to be prosecuted through the court system at great expense. The changes provide a middle ground between ignoring breaches of the law versus setting a more complicated and expensive prosecution in motion.

Administrative penalties can be up to $10,000 per violation per day and officers have the discretion to set the amount based on their consideration of the seriousness of the breach or failure to comply, the risk of harm and any other factor the officer considers relevant. The fine must be paid within 30 days, unless an earlier date is specified. Appeals can be brought before the Occupational Health and Safety Council. If the fine is paid, the person cannot be charged under the legislation for the same offence. Fines for breaches and non-compliance can be given for up to two years after the date of the infraction. Where the fine remains unpaid, the amount can be recovered by the government through judgment enforcement proceedings, which can include garnishing bank accounts and seizing assets.

Fines

As of Jan. 1, other amendments to Alberta’s health and safety legislation came into effect which permit officers to fine workers and employers for specific minor infractions. Ticketing is a compliance tool that delivers an immediate consequence to workers or employers when violations of specific provisions of occupational health and safety legislation are observed by an OHS officer.

These tickets can range from $100 to $500 and are similar to traffic tickets by being issued on the spot and without delay.

A worker or employer who is fined can challenge the ticket by pleading not guilty before the provincial court of Alberta. Many of the listed offences will have an impact on oil and gas employers in Alberta. These include failing to ensure:

• WHMIS material safety data sheets are available: $500

• a derrick/mast log book is available at the work site: $300

• a worker is wearing required equipment: $500

• a worker wears approved eye protection: $300

• a worker uses required protective footwear: $300

• a worker does not climb onto an unsecured load: $200

• an absence of ignition source while refuelling vehicle: $500

• a worker has immediate access to emergency wash equipment: $500

• the work site is clean and free of slipping and tripping hazards: $500

• workers are protected from falling objects: $500.

[em]David Myrol is a partner at McLennan Ross LLP in Edmonton and chair of the firm’s OHS practice group. He is a nationally recognized practitioner of occupational health and safety in Canada. An experienced trial lawyer, he defends companies and individuals facing OHS, environmental and other regulatory charges. He can be reached at (780) 482-9290 or dmyrol@mross.com[a href="mailto:dmyrol@mross.com."].

[/a]This article originally appeared in the Autumn 2014 issue of Canadian Oil & Gas Safety. [/em]

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