An Alberta Arbitration Board has concluded in the Unifor, Local 707A v. Suncor Energy Inc ("Suncor") policy grievance that Suncor's random drug & alcohol policy imposed at its oil sands operations is an unreasonable exercise of the employer's management rights.
Suncor introduced the random drug and alcohol testing policy as part of its comprehensive approach to managing safety on its worksite. The random testing complemented a host of other techniques that had been incrementally deployed over the previous 13 years. Random testing was to be conducted by way of urinalysis.
The Suncor decision is the first in Alberta since the Supreme Court of Canada issued its judgment in the Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. ("Irving"), which ultimately upheld the decision of an arbitration board that random alcohol testing was unreasonable.
In Irving, the Court held that, absent extraordinary circumstances, an employer may not unilaterally impose a random alcohol testing policy on all of its employees, even where the work is dangerous. Extraordinary circumstances include situations where alcohol use is a pervasive problem in the workplace and the employer can provide evidence to establish this. The Supreme Court states random testing policies must be assessed by virtue of a balancing of interests that weighs the benefit gained by random testing with the harm caused by infringing privacy rights.
Suncor sought to demonstrate that the safety sensitive nature of their oil sands operations and the potential for catastrophic consequences if alcohol and drug use is not curtailed justifies the use of random testing and falls within what the extraordinary circumstances exemption left open in Irving. Unifor, on the other hand, argued that Suncor's approach was particularly intrusive and without evidence that there was a safety concern among the members of their bargaining unit.
The arbitration board heard extensive evidence from both sides. Expert evidence was called to address a number of issues, including the effects of impairment in the workplace, the role of random testing as a mechanism for deterrence, and the availability and efficiency of different detection methods. Suncor also provided evidence with respect to drug and alcohol use in the Fort McMurray region, previous drug and alcohol testing results from the site, and information about prior incidents where injury or death occurred.
With respect to random alcohol testing, the arbitration board directly applied the test set out in Irving and found that Suncor had failed to demonstrate there was a workplace problem that would warrant the imposition of random testing. They found this was not an extraordinary circumstance because there was no evidence that established a connection between positive test results and the safety record at the site. The arbitration board stated that there must be evidence from that workplace and with that bargaining unit – statistics that included employees from outside the bargaining unit or incidents in the camp accommodations rather than the worksite itself were not determinative.
With respect to random drug testing, the arbitration board noted that there was an additional factor to consider in that urinalysis does not demonstrate current impairment and, as such, Suncor was unable to demonstrate that drug use by employees in the bargaining unit could be linked directly to an accident, injury, or near miss.
Finally, the arbitration board commented on the availability of other types of testing. They noted that evidence was given that oral fluid testing was available, was able to determine present impairment, and had the added advantage of being more difficult to "cheat" while being less invasive. The invasive nature of urinalysis weighed heavily on the arbitration board.
The arbitration board concluded that the gains which Suncor would achieve from randomly testing its workforce for drugs and alcohol would not be sufficient to justify random testing on a balancing of interests approach. Accordingly, the Policy was deemed unreasonable.
The decision marks another blow to employers that seek to be proactive in protecting workers from catastrophic injury by instituting random drug and alcohol testing. That said, the decision offers a number of important indications as to what will be necessary to satisfy the test set out in Irving:
- Employers should carefully consider the method of testing that is employed to ensure that it provides accurate testing results while minimizing the impact on an employee;
- Data with respect to testing results and workplace incidents must be capable of being applied to individual bargaining units and worksites; and
- 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 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.
Employers must be exceptionally careful when implementing drug and alcohol testing programs as this area of law continues to rapidly develop. It is a positive sign that the arbitration board has endorsed the DARRPP principles, but each random testing policy must be carefully designed to address the unique risks and hazards identified in each workplace.
We are advised that Suncor will be seeking a judicial review of the arbitration board's decision, so there may be additional consideration of these issues in the months ahead.
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