Panel rules against random drug testing

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by Richard Gilbert last update:Oct 9, 2014

Canada's largest private sector union is applauding a decision by an Alberta arbitration panel that random drug and alcohol testing of all employees at a Suncor site near Fort McMurray violates the fundamental rights of workers to privacy, respect and dignity in the workplace.

“Random drug testing of workers that have done nothing wrong is a violation of their basic rights,” said Roland Lefort, president of Unifor Local 707A.

“We will work with Suncor to achieve the highest possible levels of workplace safety with education and prevention, not invasive medical procedures.”

Suncor introduced a random alcohol and drug testing program at its oilsands operations in May 2012, which was designed to test employees in safety sensitive positions.

The random testing policy was going to be applied to 2,771 workers, which represented about 82 per cent of the 3,383 unionized employees.

The policy was scheduled to take effect on Oct. 15, 2012.

In response, the Communications Energy and Paperworkers (CEP) Union Local 707 filed a grievance in July of that year.

The CEP was granted an injunction on Oct. 12, 2012 to prevent the implementation of the policy pending the result of arbitration.

The Court of Appeal upheld the injunction on December 5, 2012, but it didn’t end there.

Mediation Services in Alberta selected Tom Hodges to be the chair of the arbitration board in the ongoing disagreement between the CEP and Suncor.

The arbitration board concluded that urinalysis does not demonstrate current impairment. It indicates use, but not the quality, quantity or time of use.

“Given this evidentiary limitation, evidence of positive tests, without more, does not allow us to conclude that drug use by Suncor employees in the bargaining unit poses a safety risk of such a magnitude that would justify the imposition of random testing for safety sensitive positions,” said the decision by the arbitration board.

“We find that the evidence tendered, with respect to drug and alcohol security incidents, does not demonstrate a serious drug issue among employees in this bargaining unit.”

The board found the 14 positive alcohol tests over a nine-year period in such a large workforce does not establish a significant problem or legitimate safety risk.

Suncor wasn’t able to establish its claim that there is an out-of-control drug culture in the bargaining unit.

In addition, Suncor has a health and safety system, but did not present information to link accident, injury and near miss incidents to drug use.

For this reason, the board found Suncor’s proposed random drug testing policy was unreasonable.

The Supreme Court of Canada ruled in June 2013 that Irving Pulp and Paper Ltd. in Saint John, New Brunswick was unreasonable when the company unilaterally adopted random drug testing in 2006 for employees in safety sensitive positions.

The union argued that the case affirmed the fundamental importance of privacy rights in Canada and dictates the use of a “balancing of interests” approach.

This requires an arbitrator to ask whether there is proportionality between the benefit gained by random testing and the harm done to be done to employees by random testing.

This means an employer can impose random testing in a dangerous workplace, but this response must be proportionate in light of both legitimate safety concerns and privacy interests.

In this case, Suncor proceeded unilaterally without negotiating with the union. The company is required to show reasonable cause before subjecting employees to potential disciplinary consequences.

Suncor’s decision to use urine testing was also questioned by the board. Oral fluid testing was not chosen for use, even though it is a more accurate testing measure.

Suncor had raised concerns that employees knowing they will fail urine tests could engage in efforts to adulterate those tests.

The board found a urinalysis test is unable to provide an employer with the specific information needed in relation to impairment or influence by drugs at the time the test is taken.

For this reason, identifying an employee, who recently used drugs, doesn’t meet the threshold of a legitimate business interest which justifies the intrusion into privacy that a demand for urine entails.

By imposing the 2012 drug testing policy, Suncor made a significant deviation from the direction of the proposed Drug and Alcohol Risk Reduction Pilot Project.

Construction and energy unions in Alberta agreed to participate in the two-year initiative, which included random workplace drug and alcohol testing for union members and contractors working in safety-sensitive or specified positions.

last update:Oct 9, 2014

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