Drug and Alcohol Testing: What Evidence Does an Employer Need to Establish a Random Testing Policy?
Labour and Employment Newsletter – Autumn 2017
Many employers want to establish drug and alcohol testing policies in their workplace. However, there have been a number of challenges to such policies, and many of these challenges have succeeded. The Alberta Court of Appeal recently provided guidance on a key aspect of such policies, specifically the evidence employers need to create a valid drug and alcohol testing policy. This newsletter sets out the latest on the requirements of a valid policy.
In 2013, the Supreme Court of Canada (the “SCC”) released a significant decision on the validity of drug and alcohol testing in the workplace. In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 (“Irving”), the SCC decided that employers have to show “sufficient evidence” of an existing problem with drugs or alcohol in their workplace to justify a random testing policy. The Employer then has to balance the need to address that problem with the employees’ right to privacy. There is no exact definition of what constitutes “sufficient evidence” so, in each case, employers have struggled to implement testing policies.
The Alberta Court of Appeal recently provided guidance on this issue in Suncor Energy Inc. v. Unifor Local 707A, 2017 ABCA 313 (“Suncor”). This case sets out what evidence is necessary to justify a random testing policy.
In 2012 Suncor implemented a random drug and alcohol testing policy for safety-sensitive positions at two locations in the Fort McMurray area. The Union representing many employees there (“Unifor”) grieved this policy, claiming that it violated the privacy rights of its members. A three-person arbitration board heard the grievance in 2013. Suncor led evidence showing that it had based the policy on information about safety across the entire workplace (both unionized and non-unionized employees). Unifor argued that Suncor did not have sufficient evidence of a problem as it did not have evidence of a problem specific to the bargaining unit.
The majority of the board agreed with Unifor. It found that Suncor had not provided enough evidence to prove that there was a general substance abuse problem within the bargaining unit as its evidence related to the entire workplace. The majority stated that the evidence presented by Suncor was “unparticularized” and “unspecific”, and did not show a link between drug/alcohol use within the bargaining unit and the safety incidents on site.
The dissenting opinion criticized the majority’s decision as inappropriately narrowing the focus of the issue to the bargaining unit in question, rather than considering problems within the workplace as a whole. The dissent found that there was clear evidence of safety issues within Suncor’s workplace.
Suncor challenged the arbitration decision in the Alberta Court of Queen’s Bench. The reviewing judge found a number of errors, including that the arbitration board failed to strike the appropriate balance between workplace safety and employee privacy. The Court overturned the arbitration decision.
Unifor appealed. The Alberta Court of Appeal held that the arbitration board should have considered Suncor’s evidence of substance abuse across the entire workforce. It held that evidence of a general problem in the workplace was sufficient basis to introduce a drug and alcohol testing policy, and that the employer did not have to have evidence of a problem in the bargaining unit per se.
Lessons for Employers
The SCC’s decision in Irving required that employers have “sufficient evidence” of a substance abuse problem in their workplace in order to randomly test employees in safety-sensitive positions. This decision was not specific, though, about what evidence related to safety incidents on site involving drugs and alcohol that an employer has to have when creating a random testing policy. Employers now have guidance about what evidence they need to successfully implement a policy, including that they do not have to distinguish between union employees, non-unionized employees and contract employees when presenting evidence of safety incidents and substance abuse.
An employer must, of course, balance workplace safety issues with the privacy rights of their employees when implementing a drug and alcohol testing policy.
It remains challenging to establish a random drug and alcohol testing program, but employers now have a clearer picture about what evidence they need.
DISCLAIMER: This newsletter is for information only; it is not legal advice. We urge you to consult legal counsel before acting on the information provided.