Update on Random Alcohol and Drug Testing
In
2013 in Communications, Energy and Paper Workers
Union of Canada, Local 30 v Irving Pulp & Paper, Ltd (“Irving”), the Supreme Court of Canada confirmed a
company may conduct random alcohol testing for a safety-sensitive position
where the company can establish it operates a dangerous workplace and there is
a general problem with alcohol abuse in the workplace. This test is a very
high obstacle to overcome.
In Irving,
the Supreme Court set out three specific instances, even in
safety-sensitive industries where testing may
occur:
(i)
there is reasonable cause to believe that
the employee is impaired while on duty,
(ii) the employee has been directly involved in a workplace accident or significant incident,
or
(iii) the employee is returning to work after treatment for substance abuse.
(ii) the employee has been directly involved in a workplace accident or significant incident,
or
(iii) the employee is returning to work after treatment for substance abuse.
This year
the Ontario Superior Court gave some insight into
the analysis a court may undertake when assessing random testing. See Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 discussed in our April 2017
newsletter.
A recent decision of the Court of Appeal of
Alberta in Suncor Energy Inc. v. Unifor
Local 707A (*1) provides additional guidance on alcohol and drug testing.
In 2012, Suncor
implemented random drug and alcohol testing for workers in safety-sensitive
positions at some of its sites in the Fort McMurray area. Unifor grieved the
alleged infringement of unionized workers’ privacy rights. The majority of the
arbitration panel ruled in favour of Unifor. The majority of the panel held
that the employer had not demonstrated sufficient safety concerns within the
bargaining unit to justify random testing. The dissent concluded that there was
overwhelming evidence of safety issues within the workplace, including
substance abuse issues, and would have upheld the employer’s random testing
scheme.
Suncorp appealed
to Court of Queen’s Bench for judicial review. The arbitration decision was
quashed by the reviewing justice, who ordered that the matter be sent back for
a fresh hearing by a new panel. The judge found that the majority’s decision to
be unreasonable for three main reasons. First, he held that the tribunal’s
majority misapplied the balancing exercise outlined in Irving by
imposing more stringent requirements than those contemplated by the Supreme
Court of Canada. Second, he concluded that the majority erred by only considering
the evidence that demonstrated substance abuse problems within the bargaining
unit, and ignoring the evidence of substance abuse problems within the broader
workplace. [At the site there were both unionized and non-union personnel.] Finally, he concluded that the majority had
failed to consider all of the relevant evidence.
The Union appealed to the Court of Appeal for
Alberta. The Court of Appeal considered only one ground of the appeal: the arbitration panel majority’s
suggestion that it should only consider evidence demonstrating a drug or
alcohol problem within the
bargaining unit.
The
Court of Appeal noted that in Irving,
Abella J explained how a dangerous worksite is not, in itself, enough to
justify management imposing random drug or alcohol testing on its unionized
employees. She defined the test in terms of whether there are special safety
risks, and in particular, whether there was evidence of a general problem of
substance abuse within a workplace (at para 31, emphasis added):
[T]he
dangerousness of a workplace — whether described as dangerous, inherently
dangerous, or highly safety sensitive — is, while clearly and highly relevant,
only the beginning of the inquiry. It has never been found to be an automatic
justification for the unilateral imposition of unfettered random testing with
disciplinary consequences. What
has been additionally required is evidence of enhanced safety risks, such as
evidence of a general problem with substance abuse in the workplace.
The Court also noted that in an attempt to satisfy this test
from Irving, Suncor led extensive evidence about
employee substance abuse problems at its Fort McMurray operations. Some of this
evidence directly implicated its unionized employees. Suncor introduced
evidence about positive drug and alcohol tests that took place after safety
incidents or “near misses,” with these records indicating that over 95% of the
positive tests had involved unionized employees. However, much of Suncor’s
evidence related to the workplace as a whole, and did not distinguish between
unionized employees, non-unionized employees, and contractors’ employees.
Suncor introduced evidence of over 2,200 “incidents” at its Fort McMurray
operations that involved drugs or alcohol, but did not provide a breakdown of
how many of these incidents involved unionized employees versus non-unionized
employees or contactor employees.
The Court of Appeal held that it was
unreasonable for the tribunal majority to insist upon “particularized” evidence
specific to Suncor’s unionized employees. At paragraphs 46 and 47 it held that:
This sets the evidentiary bar too high. Irving defined
the balancing process in terms of workplace safety and workplace substance
abuse problems – not bargaining unit safety and bargaining unit substance abuse
problems. Irving calls for a more holistic inquiry into drug
and alcohol problems within the workplace generally, instead of demanding
evidence unique to the workers who will be directly affected by the arbitration
decision. A broader, workplace-focused analysis appears consistent with how
both the Supreme Court and the arbitration panel in Irving approached
the balancing process. In the Irving arbitration decision, the arbitrator
mentioned how some of the evidence did not distinguish between the “groups of
employees” involved in alcohol-related incidents, but also specifically
considered evidence about alcohol testing within the overall workplace,
including plant employees outside the bargaining unit
The appeal was dismissed.
The takeaway for employers: employers must be
cautious when implementing a random alcohol and drug testing policy. Only a
general problem with substance abuse (in a safety sensitive industry) needs to
be demonstrated, rather than a “significant problem” (and a reasonable
likelihood of risk to heal and safety due to substance abuse) being required in
order to justify testing.
Endnotes
(*1) 2017 ABCA 313
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