Canada says no to Suncor random alcohol and drug testing
A board of arbitration in Alberta, Canada, has ruled that the random drug and alcohol testing of employees does not stand up to the new legal tests set out by the Supreme Court of Canada in the 2013 Irving decision.
In March 2014, an arbitration board decided that that Suncor Energy’s proposed random alcohol and drug testing policy was “unjustifiable, unreasonable, and violates employees’ privacy rights, human dignity, and human rights”. The board also said that the company policy “sanctions unreasonable and unjustifiable searches of employees’ persons.”
Suncor proposed to carry out random breathalyser and urine tests on Unifor Union members who were working in “safety sensitive” or “specified” positions. Employees were to be randomly selected by a computer with the aim to test at least half of policy participants each year.
In October 2012 the Union requested an injunction to block the proposals at Suncor’s Alberta oilsands site. The Alberta Court of Queen’s Bench agreed with the injunction and the injunctive relief was upheld.
This case is of great interest across Canada. Random drug testing is now standard practice in America and many American oil companies operate in Canada.
This decision, and that of the Irving case before, is placing the privacy of workers before the desire of business. Companies will now need to have a very good reason to impose random drug and alcohol testing on all employees.
Mr. Leger, a Fredericton lawyer acting for the Communications, Energy and Paperworkers Union of Canada Local 30, said: “It is confirmation that the privacy rights that we enjoy don’t end when we enter our workplace.”
Mr. Leger points out that the union only objects to random testing, and does not object to alcohol testing with “just cause,” or after a workplace accident.
The Irving decision
The Irving decision was made by the Supreme Court of Canada in June 2013 when it ruled that a labour arbitration board had the right to strike down a policy at Irving Pulp & Paper Ltd. Irving Pulp & Paper had started random alcohol tests and had tested around 10 per cent of their workforce in the space of a year.
The policy had been in place since 2006 but it was challenged on the grounds that it was a violation of worker privacy and dignity. Because the tests were random Irving tested an individual who does not drink on religious grounds and he felt that this was an invasion of worker privacy.
It was decided that as Irving had only reported eight incidents in 15 years of an employee abusing alcohol there were no grounds to implement compulsory random testing of all employees.
Lawful in certain circumstances
Lawyers who act for companies have stated that random drug and alcohol testing is still lawful under certain circumstances. However, they are concerned that these recent cases are likely to aid unions in future challenges to company drug testing policies.
We can expect to see many more cases in the next few years while the law is decided with regard to random drug and alcohol testing. The rights of the individual to have a private life outside of work needs to be carefully balanced with the right of workers to operate in a safe working environment.