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The SCC leaves the door open to random testing where there is proof of a problem

OTTAWA, ONTARIO, June 16, 2013 – A precedent-setting Supreme Court of Canada decision has reinforced previous rulings that random drug or alcohol testing may be allowed in certain workplaces where there is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.

The SCC has also reaffirmed that in a dangerous workplace, even if the collective agreement does not include a provision for it, the employer can subject particular employees to testing in certain circumstances:

“Where there are reasonable grounds to believe that the employee was impaired while on duty, where the employee was directly involved in a workplace accident or significant incident, or where the employee returns to work after treatment for substance abuse.”

The Court was silent on whether applicants can be tested as a condition of qualification to a safety-sensitive position, and on testing as a condition of continued employment after a violation, so that employers can fall back to previous rulings that have allowed for testing in these situations.

THE REASONING

The widely publicized case that led to the SCC’s ruling involved Irving Pulp and Paper Ltd. and the Energy and Paperworkers Union of Canada, Local 30. Irving had universally imposed a random alcohol testing requirement on its unionized “safety-sensitive” workers that was not laid out in their collective agreement. The random testing requirement was challenged on the basis that it violated privacy rights, and in a 6-to-3 decision, the Supreme Court of Canada struck the requirement down, saying that it didn’t meet the privacy-safety balance.

In its majority ruling, the SCC said that an employer cannot unilaterally subject its employees to random testing solely on the basis that the positions held are safety sensitive, or on the basis that the sector in which the business operates is dangerous.

However, the Court did suggest that if an employer can prove that the workplace is dangerous and can establish that a real problem with alcohol or drug use/abuse exists within the company, random testing program may be justified.

IMPLICATIONS FOR UNIONIZED AND NON-UNIONIZED WORKPLACES

For unionized workplaces, an employer that can differentiate its circumstances from those of Irving’s may achieve a different outcome. Labour lawyer Scott Williams with Hicks Morley in Toronto says the SCC has left what constitutes sufficient evidence of an alcohol or drug problem open to interpretation. “The more data an employer has, the better that will be,” Williams says.

In its decision, the SCC suggests employers who wish to universally implement random testing will be required to prove that “enhanced safety risks” exist due to a sufficiently serious drug or alcohol problem, and that the problem persists despite the employer’s attempts to manage it.

Pat Atkins with the Drug and Alcohol Risk Reduction Pilot Project says this is the case in the Oil Sands in Northern Alberta, where data from one employer indicates that in spite of supervisor education and training on how to recognize drug or alcohol use/abuse in the workplace, six times more employees have alcohol and drug problems than are noticed by their supervisors through the reasonable cause process.

Given the SCC’s ruling, policy development expert Barb Butler says the wisest move for an employer considering implementing random testing is to put a comprehensive policy in place that provides for assistance and support for workers with alcohol or drug problems, and includes testing under investigative circumstances (e.g. reasonable cause and post incident situations). She says employers should track their policy’s effectiveness, positive rates, and the evidence of drugs and/or alcohol in the workplace. If, as a result of having the policy in place, the employer is still seeing problems with alcohol and drug use, Butler says the employer may have the type of data that could give grounds to add random testing at a future date.

It remains to be seen if the Irving decision will have similar implications for unionized and non-unionized workplaces alike. Many of the non-union cases in the past have arisen under human rights legislation, entailing an analysis of whether a policy is discriminatory, typically on the basis of disability.

Unlike non-unionized workplaces, cases involving a unionized setting (like Irving) have typically involved a balancing of privacy and safety interests in addition to the requirement for compliance with human rights laws. There is no sign yet of whether the framework used to determine if random testing is permitted in a unionized setting will be applied more regularly in non-unionized settings in an attempt to develop a more consistent approach to testing.

In addition, it remains to be seen if both random alcohol testing and random drug testing will be treated similarly. The Irving decision dealt exclusively with random alcohol testing, but Butler says it is possible that the evidence required to justify alcohol testing will also be required to justify drug testing. She says at the very minimum, employers who wish to implement random drug testing will likely be held to the same standard or a stricter standard than the one that has been reinforced by the SCC in the Irving case.

In a recent case involving a request for a temporary injunction on random testing at Teck Coal Ltd., the arbitrator decided the legal test that applies to random alcohol testing is the same as that for random drug testing – balancing the interests of privacy and safety. However, he noted there are elements that affect the balance differently in terms of privacy (a breathalyzer is used to test for alcohol, whereas a urinalysis is used to test for drugs) and safety (alcohol testing is generally considered to be able to detect impairment at the time of the test).

For employers who are not regulated by the U.S. Department of Transportation and who currently randomly test their employees for drugs and/or alcohol, it is possible that they can continue with their current testing program in order to limit drug use on the job. Employers in unionized workplaces who are currently randomly testing their employees may want to determine if the union’s reasonable timeline to grieve has past, provided there is no allowance for random testing in the collective bargaining agreement. We would also like to remind clients that the information contained in this document is not intended to be taken as legal advice. DriverCheck recommends that employers consult legal counsel before determining how to proceed.

PENDING ARBITRATION

Teck Coal is one of two cases currently being arbitrated in Western Canada that could set the standard of evidence required in the future to prove that a problem with drugs or alcohol in the workplace exists. In each case, the employer is trying to prove that it has enough evidence to warrant random testing.
Atkins says that in Alberta, particularly in the North, there is clearly a work environment with inherent safety risks and she believes there is enough evidence of drug and alcohol use and abuse to justify random testing. Suncor, one of the companies whose random testing policy has been challenged by its union, has publicly stated that there have been 3 fatalities related to drugs or alcohol at its work sites since 2006.

In Teck Coal vs. United Steelworkers Local 9346, the B.C. mining company was recently permitted by the arbitrator to continue random drug and alcohol testing during arbitration. In his decision to deny the union’s request for an injunction, the arbitrator concluded that when comparing the invasion of an employee’s privacy to an industrial accident – the risk of industrial accident carried greater potential for irreparable harm.

OTHER CONSIDERATIONS

Previous case law has suggested there may be cases where no evidence of a drug or alcohol problem at a workplace will be required to justify random testing. There may be workplaces where the consequences of a drug or alcohol-related incident are so catastrophic that proof of a problem is not necessary. Arbitrators in various cases have cited nuclear facilities or large-scale commercial aviation operations as possible examples.

It is also important to note that in the Irving case, the SCC was only arbitrating between two parties, balancing privacy interests and safety concerns, not the public interest; thereby leaving it open for law-making authorities to get involved if they so choose. This has happened in the United States, where the Department of Transportation and other government agencies instituted regulations mandating random alcohol and drug testing (as well as testing under other circumstances) in the trucking and bus, airline, railroad, oil and gas pipeline, mass transit, merchant marine/coast guard, and nuclear industries.

Butler says whether testing is allowed or not, employers should not ignore human rights laws around the duty to accommodate. There should always be prevention, assistance, and an opportunity for a Substance Abuse Professional assessment if an employee tests positive for drugs or alcohol.

About DriverCheck Inc.

DriverCheck Inc. is a national provider of drug and alcohol testing, fatigue management and occupational health services. The physician-owned and operated company serves 6,000 clients across Canada and has a nationwide network of over 700 collection sites and clinics.

For more information, contact: Sherry Morley, Marketing and Communications Coordinator, 1-800-463-4310 Ext. 246, email: smorley@drivercheck.ca

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1. Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp and Paper, Ltd, 2013 SCC 34.
2. Williams, Scott. Hicks Morley Hamilton Stewart Storie LLP. Toronto, Ontario.
3. Butler, Barb. Barb Butler & Associates Inc. Management Consultants. Toronto, Ontario.
4. Atkins, Pat. Drug and Alcohol Risk Reduction Pilot Project. Calgary, Alberta.
5. United Steelworkers Local 9346 and Local 7884 v Teck Coal Limited, Application for Interim Order, 2013.