random drug and alcohol testing

Osler, Hoskin & Harcourt LLP

Thomas Kehler, Brian Thiessen,Damian Rigolo & Shaun Parker

Random Drug and Alcohol Testing and Employer Learnings from Suncor v Unifor

March 15, 2017

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DRUG AND ALCOHOL TESTING

Agenda

1. Overview of D&A Testing (Irving)

2. Post Irving Case Law and Arbitral Decisions

3. Suncor v. Unifor

4. Practical Suggestions

5. Questions

Overview

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Overview


• Employers have a statutory obligation to provide a safe workplace and, accordingly, have a legitimate interest in doing so.

• There is no legislative regime in Canada that specifically governs drug and alcohol testing in the workplace: case law and arbitral jurisprudence.

• Balance between an employer's legitimate interest and obligation to provide a safe work environment and an employee's privacy and human rights.

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Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 ("Irving")


• Random alcohol testing- an employer must establish that its workplace is: (i) dangerous; and (ii) an employer “must provide evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.”

• Irving provides little guidance with respect to the degree of seriousness of a drug or alcohol problem in the workplace that is required to justify random testing.

• "only" 8 documented incidents of alcohol consumption or impairment in the workplace over a period of 15 years – held to be insufficient.

• The deterrence value of random testing was not given real consideration.

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Overview


TESTING METHOD PERMISSIBILITY

Pre-Employment Testing Possibly.

Universal Random Testing

Possibly, in a dangerous workplace with enhanced safety risks such as demonstrated problems with drug and alcohol abuse. However, the Supreme Court of Canada has noted that such safety risks would have to outweigh the "unassailable conclusion" of the "significant inroads" that random testing would have on employee privacy.

Reasonable Cause/Post-Incident Yes.

Post-Reinstatement Testing Yes, as a necessary facet of a broader assessment process (for a stipulated term only, most commonly 2 years).

Mandatory Disclosure of Current Problem Yes.

Mandatory Disclosure of Past Problem

Limited to a 5 to 6 year period after successful remission for alcohol, 6 year period for drugs.

Post Irving

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Post Irving Case Law and Arbitral DecisionsBombardier Transportation and TCRC, Division 660, Re, 2014 CarswellNat 240 (CROA&DR)• Arbitrator partially allowed grievance – upheld provision for test when moving to safety sensitive

position (but not between safety sensitive positions) – invalidated provision that would automatically find failing employee unqualified to perform their job. [Pre-Access and Post-Incident]

Suncor Energy Inc. v. Unifor Local 707A (Suncor Energy), Re, 2014 CarswellAlta 457 (AB LA)• Arbitrator permits grievance and finds policy was unreasonable use of management rights. [Random]

Teck Coal Limited v United Steelworkers, Local 9346, 2014 CanLII 37907 (BC LA)• Grievance sought to strike down Teck’s random drug and alcohol testing -- Teck established significant

risks of industrial accidents at its workplace (no history of accidents caused by impairment) -- grievance struck as safety outweighed employee’s privacy concerns. [Random]

Mechanical Contractors Association Sarnia v UA, Local 663, 2014 ONSC 6909• ONSC upholds arbitrator’s decision to invalidate policy –- no evidence of alcohol or drug problem, or

record of safety incidents at a “safety-sensitive” worksite –- policy not “reasonably necessary”. [Pre-Access]


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Post Irving Case Law and Arbitral DecisionsTeck Coal Limited and UMWA, Local 1656, Re, 2015 CarswellAlta 2237 (AB LA)

• Similar grievance allowed by arbitrator -- arbitrator found no enhanced safety risk, consistent positive tests, or link between workplace incidents and drug or alcohol use. [Random and Post-Incident]

Agrium Vanscoy Potash Operations and USW Local 7552, Re, 2015 CarswellSask 1 (SK LA) • Arbitrator allowed grievance – Agrium provided evidence of drugs and paraphernalia –

insufficient evidence of problem with drug abuse in specific bargaining unit bringing the grievance. [Random]

Amalgamated Transit Union, Local 113 v TTC (March 2017)• The union is seeking an injunction to block the TTC’s plan to implement random drug & alcohol

testing for all safety sensitive positions commencing on April 1, 2017.

• 11,000 random tests carried out between October 2010 and December 2016 found 291 documented cases of questionable behavior. There were also 45 instances of employees buying or selling drugs or alcohol on the job. [Random]


Suncor v Unifor

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Overview of Suncor’s Challenge

• Current status of Suncor’s random testing challenge.

• How much “evidence of a problem” is enough?

• Considerations re: method of testing – urine or oral swab?

• Practical problems of arbitral deference and thoughts on mitigation.


Practical Suggestions

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• Have a D&A policy and protocols/procedures in place;

• Have a strong OHS policy and protocols in place;

• Train front-line managers/supervisors on policies and protocols every 1-2 years

• Tailor the policies to address the issues raised by caselaw: ◦ Random Testing – tie its use to situations of drug and alcohol

abuse issues; and◦ Post-Reinstatement Testing – use the language of the caselaw

(eg. Time horizon)


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• Keep records of workplace safety incidents;

• Keep records of drug and alcohol “incidents”/employees, whether safety or operationally related or not; and

• Complement D&A testing regime with management observation:◦ Caselaw: both union and non-union, gives deference to

managements’ observations• Slurred speech, unsteadiness, red eyes, etc; and

• This is just as important as testing.


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Practical Suggestions• Decision-makers will be more likely to uphold drug and alcohol testing

policies that are tailored to address legitimate workplace safety hazards which can be demonstrated with concrete evidence of workplace drug or alcohol problems.

• An employer that wants to implement random drug and alcohol testing will need to lead evidence of a general workplace problem with drugs or alcohol, as well as evidence of the inherent dangers in its workplace if such problem is not addressed.


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Brian Thiessen

Partner, Employment & Labour and Privacy & Data Management

[email protected]

403.260.7018 604.692.2764

Damian Rigolo

Partner, Employment & Labour

[email protected]

403.260.7046

Shaun Parker

Associate, Employment & Labour

[email protected]

403.260.7013 604.692.2765

OSLER CONTACT INFORMATION

Special thanks to Thomas Kehler, VP Legal Affairs at Suncor Energy for his valuable input.

mailto:[email protected]

