By Jeffrey R. Smith
About 18 months ago in this space I described random testing of employees for drug and alcohol use as a “never-ending battle.” Numerous employers have tried to implement such testing of employees, and numerous unions have fought it. That previous column was in response to an Alberta Court of Queen’s Bench decision that allowed energy company Suncor to randomly test employees at its northern Alberta oilsands operations — a decision that overturned an arbitration board's finding that didn’t support the testing. But that wasn’t the end of it.
The battle continues, as now the same court has approved an injunction against Suncor from continuing with random testing of all of its employees until the Supreme Court of Canada decides whether or not to allow the union’s appeal of the 2016 decision.
The 2016 decision allowed random drug and alcohol testing because Suncor was able to demonstrate that there was a problem with drug use at its oilsands operations — more than 2,000 incidents between 2003 and 2013 relating to alcohol and drugs — that caused a risk to the safety of everyone working there, due to the safety-sensitive nature of the operations. This decision was consistent with the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. — another case that went back-and-forth through several levels from arbitration up to Canada’s top court — where Irving Pulp and Paper was able to prove the danger in its workplace and a problem among its employees with drugs and alcohol was enough to warrant random testing.
The Alberta court’s reasoning for the injunction against Suncor’s testing program went along with the union’s argument that testing any and all employees at any time was an unacceptable violation of employee privacy and human rights. This argument was shared by the union in Irving and basically every other arbitration and court case involving random testing.
As usual, the argument over random testing centres over the privacy and rights of workers against the risks of impaired employees working in a dangerous environment. Will random testing catch impaired workers before they cause an accident? Is the level of danger to the workers and others high enough to warrant impinging on the violation of their privacy and rights that tests requiring blood or urine samples involve? How many incidents are necessary to demonstrate a problem with employees showing up to work with drugs or alcohol in their systems?
It’s not an easy balance to strike. The Irving case showed how much there can be a difference of opinion, as each judicial level reached a different conclusion than the previous one and it wasn’t settled until the Supreme Court took over. And with Suncor making a quick appeal of this most recent injunction while the union appealing the 2016 decision to Canada’s top court, it looks like the dispute is far from settled.
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Jeffrey R. Smith is the editor of Canadian Safety Reporter
and Canadian Employment Law Today
, sister publications of COS.