PDF version: Random Drug and Alcohol Testing Policy Implicates Safety, Privacy, Human Rights and Civil Liberties
Case commented on: Communications, Energy and Paperworkers Union, Local 707 v Suncor Energy Inc. 2012 ABCA 307 (“CA”)
The issue of random drug and alcohol testing in the workplace has now reached national importance. The Supreme Court of Canada recently granted leave to appeal in such a case. See: Communication, Energy and Paperworkers Union of Canada, Local 30, v Irving Pulp & Paper Ltd., 2011 NBCA, leave to appeal to Supreme Court of Canada (“SCC”) granted: 2012 CanLII 14844 (SCC), (“Irving”). It is likely the SCC will hear this case in December 2012 (Jeff Gray, “Supreme Court to rule on random alcohol testing” The Globe and Mail 08 May 2012). Alberta has a keen interest in the outcome of this case as it has its own pending cases.
One such Alberta case has an interesting history. In a letter dated June 20, 2012, Suncor advised its employees that it would be introducing a new random drug and alcohol testing policy (“Policy”) for Communications, Energy and Paperworkers Union, Local 707 (“Union”) members who work in “safety-sensitive” or “specified” positions. The Union applied for an interim injunction prohibiting Suncor from implementing the Policy until a Labour Arbitration Board renders a decision on the Union’s grievance related to the Policy (Communications, Energy and Paperworkers Union, Local 708 v Suncor Energy Inc. 2012 ABQB 627, paras 1 and 2 (“QB”)).
Previously in 2008, Suncor’s drug and alcohol policy, which included provisions for post-incident testing for alcohol and drugs, was the subject of a grievance. The Arbitration Board upheld the grievance noting that while safety at Suncor’s worksite was very important, the procedures for post-incident testing required Suncor supervisors and managers to find evidence to justify post-incident testing (QB para 15).
Justice Eric Macklin noted that Suncor considers that about 85% of the Union members are working in “safety-sensitive” or “specified” positions. The Random Testing Standard developed by Suncor indicated that about 1,445 Union members would be randomly tested each year. Suncor also intends to implement the same Policy for its contractors and their employees on January 1, 2013 (QB, paras 16 and 17).
Justice Macklin noted that in order to succeed in an application for an interim injunction, the Union must establish (citing RJR-MacDonald Inv v Canada (Attorney General), [1994] 1 SCR 311):
a) there is a serious issue to be tried;
b) irreparable harm will result if an interim injunction is not granted and the Union is ultimately successful in its grievance;
c) the balance of convenience favours granting the injunction.
Discussing whether there is a serious issue to be tried, Justice Macklin noted that workplace safety is of paramount importance and also noted the number of cases where random testing was found to be a bona fide occupational requirement and others where these same policies were found to be invalid. In addition, Justice Macklin referred to the upcoming hearing by the SCC in the Irving case, indicating that there is a serious issue to be tried in the Alberta case.
In analyzing the potential for irreparable harm, Justice Macklin noted that courts have often considered drug and alcohol testing to constitute a “breach of privacy, dignity and bodily integrity of the individual being tested” (QB para 34). He indicated that in some cases the infringement may be adequately remedied by an award of damages, but in other cases the harm may be irreparable, resulting in humiliation and degradation (QB para 34). Justice Macklin stated that there was inadequate evidence before him to show that random testing actually reduces the safety risks. He was also concerned about the majority of employees who have been continuously employed, have no history of involvement in any incident and are not returning to work after a leave of absence for drug or alcohol related concerns. These are the people who may be irreparably harmed if the new Policy is eventually determined to be unreasonable (QB para 37). Thus, Justice Macklin held that irreparable harm would result if an interim injunction was not granted and the Union ultimately succeeds with it grievance.
Finally, Justice Macklin found that the balance of convenience favoured the granting of the injunction, as a temporary delay in imposing random drug testing would not be a great inconvenience to Suncor. The court also noted that the Policy for contractors and employees was not being implemented until January 1, 2013 (QB para 41).
Justice Macklin granted the Union’s application for an interim injunction, holding that the grievance must be considered as soon as possible (QB paras 44-45).
Next, Suncor applied to the Alberta Court of Appeal to stay Justice Macklin’s order pending an appeal of his order that is to be heard on November 28, 2012 (Ryan Cormier “Injunction Preventing Random Drug, Alcohol Testing at Suncor Upheld” Edmonton Journal 23 October 2012). Justice Jack Watson reviewed the application of the three-part test for an interim injunction, and held that he was satisfied that after considering the evidence and information provided to him, Suncor had a serious question to be argued on appeal (CA para 32). Further, as to irreparable harm (to Suncor), there was not an appreciable increase in the margin of risk to worker safety that required a demand that the Policy be implemented before the matter is heard on November 28 (CA para 40).
As for the balance of convenience, Justice Watson was persuaded that the current measures Suncor has in place were sufficient to address their safety concerns in the period before the matter was heard (CA para 41).
It seems that in all of the cases, a coherent approach needs to be established to determine what is a “safety-sensitive” position. Further, this should be decided based on objective evidence and analysis. Otherwise, the significant breaches of privacy, dignity and bodily integrity that follow random drug and alcohol testing would be justified by the subjective labelling of a workplace as “safety-sensitive.” Further, it would seem that there needs to be evidence that random testing actually works to reduce risk, especially in situations where there is no evidence of a pre-existing drug or alcohol problem in the workplace. Again, one should have to justify significant breaches of worker’s personal dignity with the knowledge that these are justifiable for the safety of everyone. Workers should also be notified in advance that random testing is a condition of their employment. It would be very helpful to employees, employers and unions if a principled approach were provided by Canada’s courts. The random drug and alcohol testing cases in the next few months should be interesting.
Admin
Suncor appealed the injunction granted by Justice Macklin that prohibited it from performing random drug tests until the receipt of the arbitrator’s decision on a grievance filed by the Union on the matter. See Communications, Energy and Paperworkers Union, Local 707 v Suncor Energy Inc., 2012 ABCA 373. Justice Myra Bielby (writing for herself and Justice Brian O’Ferrall) reviewed the prerequisites for granting an injunction. She concluded that the first criterion—there is a serious issue to be tried—was conceded. Second, the majority accepted that without the continuance of the injunction, the union’s employees would suffer irreparable harm in that the non-consensual taking of bodily fluids affects privacy rights significantly (para 5).
Third, the chambers judge was not unreasonable in determining the balance of convenience favoured the granting of the injunction. The temporary delay in imposing random testing would not have been a great inconvenience to Suncor as it had delayed the implementation of the new policy for its contractors until January 1, 2013; the union had grieved in a timely manner; the implementation of the new policy would constitute a significant change to the workplace environment; and the grievance process would involve an assessment of Suncor’s jurisdiction and evidentiary foundation for its new policy (para 6).
The evidence did not disclose that the application of the policy—which detected only prior use of drugs and alcohol—would have a effect on the prevention of job site accidents nor that it would do so more effectively than the current policy, which is limited to testing when there is evidence that creates a suspicion of drug and alcohol use. Further, the new policy is not limited to those employees who engage in hazardous work; its application to safety sensitive positions “casts a wide net over employees whose work may not involve a real risk of accident” (para 7).
Justice Jean Côté dissented. He held that the real issue here is the “balance of convenience”. He weighed the private provision of a urine sample against death or dismemberment by an accident. Further, the perils of accidents were not all experienced by Suncor employees. The plant contains a number of very dangerous substances that could leak in a catastrophic manner. Mere inconvenience to the public or to non-parties is a relevant factor for the balance of convenience analysis (para 16). In addition, the company could be subjected to heavy vicarious liability for the negligence of one of its employees. Accidents could also cause spills, leaks, smoke, pollution or death or harm to fish or wildlife (para 18). While compensation for death or personal injury is rarely fully compensated by tort or worker’s compensation law, infringement of privacy is reparable by paying money compensation. Finally, if the random testing policy here is too broad, the proper remedy would be an injunction again the excess portion. (para 23).
Perhaps Justice Côté was not persuaded by the fact that only six percent of the employees tested under the original drug and alcohol policy over a three year period tested positive. In the 12 years from 2000 to 2012, Suncor experienced seven fatalities, with just three of those having been under the influence of drugs and alcohol at the time of their deaths. The majority also noted that there was no evidence of any environmental hazard created as a result of employee substance abuse. Finally, Suncor offered no evidence that the operation of the current drug and alcohol policy had actually reduced rates of accidents during its application (para 8).
It appears that the evidentiary basis for the assertions of either side will decide this case in the end.