In a decision released this Spring, an arbitration board ruled that Suncor Energy Inc.’s drug and alcohol testing policy was in violation of employees’ privacy rights.
In May of 2012, when Canadian oil and gas producing company, Suncor, announced its intention to implement a random drug and alcohol testing policy that would apply to employees in “safety sensitive” positions, Unifor (formerly the Communications, Energy and Paperworkers Union), Local 707, grieved immediately.
The Union successfully defended its position in the Alberta courts to prevent Suncor from rolling out its policy prior to a board of arbitration’s determination of its legitimacy on the merits.
At arbitration, Suncor submitted that the policy would involve a computer-based random selection of employees and that the process of testing would involve urine samples. It also indicated that the policy was a further step in a series of policy changes it had made over the years in order to avoid accidents at its industrial worksite, where the work was dangerous and the risk of injury was high. It presented statistics showing over 100 safety incidents, including three fatalities involving workers under the influence of alcohol or drugs in the last two years. It also asserted that, as the employees already faced a similar test, the intrusion into workers’ privacy was minimal. Finally, it made the argument that, while on the worksite, employees ceded some of their privacy rights to the exercise of management rights, consistent with the express terms of the collective agreement.
The Union submitted that this small margin of accidents could not justify what it saw as a violation of privacy rights enshrined in the collective agreement, the common law, the Canadian Charter of Rights and Freedoms, the Personal Information Protection Act and the Alberta Human Rights Act. The policy was not part of the collective bargaining negotiations with the Union and its implementation would therefore be a unilateral employer action, which had to meet a reasonableness standard.
In its award, the Board acknowledged the Supreme Court of Canada’s decision in Irving Pulp & Paper Ltd., which endorsed the “balancing of interests” approach for determining the interplay between an employer’s right to advance safety interests and an employee’s right to privacy. Thus, the Board sought to ascertain the reasonableness of the policy by determining whether the benefit gained by Suncor in its universal random drug testing by urinalysis outweighed the infringement upon employees’ privacy rights.
The Board determined that Suncor did not demonstrate that urinalysis was able to confirm current impairment, and it could not gauge whether an employee was currently fit for work; therefore, its claim to improving workplace safety was unfounded. Rather, this method of testing would implicate employees who were fit for work, but tested positive due to activities outside the workplace. This inequity made the policy unreasonable.
Suncor intended to test at least 50 percent of its 2771 employees. This number was found to be disproportionately greater than the threat that drug and alcohol impairment posed to the workplace, a finding that also made the policy appear unreasonable.
Further, Suncor did not demonstrate that it had a problem sufficient to justify random alcohol testing in these circumstances. The Board considered the number of impairment-related incidents and found them to have been few in number, not to have occurred in the bargaining units to which the proposed policy would be applied, and to lack the necessary casual connection between the impairment and the accident. The Board also looked at the evidence Suncor presented regarding impairment-related incidents in the community and in “for cause” testing instance, and still did not find a sufficient problem to justify the testing.
In addition, Suncor did not provide sufficiently detailed information to explain the evidence that it presented to compare the number of positive testing results at the site in question with the number of positive testing results at its other sites across the nation.
Finally, Suncor had instituted other alcohol and drug testing policies over the years, and the evidence demonstrated that positive test results were on the decline. Therefore, the Board found the rationale of an “endemic problem” or “out-of-control” culture in this workplace to be unreasonable.
The grievance was allowed and the Board found the proposed policy to be an unreasonable exercise of management rights. It did, however, accept the wisdom of “for cause” testing when the need is triggered by an event, and the test is conducted in a manner that will detect current impairment. Finally, while the Board acknowledged that it did not have the jurisdiction to determine what a reasonable policy would look like, it endorsed the Drug and Alcohol Risk Reduction Pilot Project (DARRPP) principles for developing drug and alcohol testing, which include:
- a time-limited trial project;
- measurement of effects and results;
- maintaining respect of the dignity of employees;
- a dispute solution mechanism;
- a clear and unequivocal impairment prohibition;
- consistent training; and,
- the use of oral fluid as the testing method.
This decision reinforces that, in order to implement a universal random drug and alcohol testing policy, employers must demonstrate much more than the safety-sensitivity of the workplace or position. In fact, employers must demonstrate that the policy will be minimally intrusive to employees’ privacy and that the workplace in question struggles with an endemic problem of substance abuse.