Monday, October 30, 2017

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, 
(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.


(*1) 2017 ABCA 313


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