Random alcohol and drug testing in a unionized workplace is now even more of a gamble for employers in the wake of an Alberta arbitration board’s decision.

The award, released March 25, 2014, found that Suncor Energy Inc.’s random alcohol and drug testing policy was an unreasonable exercise of its management rights.

In May 2012, Suncor introduced random alcohol and drug testing for “safety sensitive” positions at its Athabasca oil sands operations.  In assessing the policy, the arbitration board relied heavily on the Supreme Court of Canada’s decision in Communications Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34. The general approach used by this case and others is one of “balancing interests”. The employer must show proportionality between the benefit gained by the employer and the harm suffered by employees as a result of the testing.

The Union alleged that the random testing was an intrusive invasion of privacy for all employees. The Union claims that this was unreasonable given that there was no significant safety concerns among the bargaining unit in question. The Union also alleged that the testing used was ineffective, and that there were less intrusive means to address Suncor’s alcohol and drug concerns.

Suncor, on the other hand, argued that the safety concerns associated with employees in “safety sensitive” positions outweighed the employees’ privacy interests.

Specifically, Suncor attempted to demonstrate a troubling culture of drug and alcohol use in its Fort McMurray-area operations, which jeopardized safety in the workplace and justified the random testing.

Ultimately, the majority of the 3-member board found in favour of the Union. The board treated the drug and alcohol arms of the policy as distinct from one another.

With respect to the alcohol testing, the board found that Suncor’s evidence of 14 positive tests over 9 years failed to establish that there was a legitimate safety risk.

With respect to drug testing, the board found that the method used by Suncor, urinalysis, failed to provide the necessary evidence to justify the intrusion on employees’ privacy. Urinalysis, unlike a breathalyser test for alcohol, did not prove a “temporal” link between drug use and safety incidents. In other words, the cannot tell when drugs were used in relation to the timing of an accident. The board also emphasized there were less intrusive and more effective means to test for drug use.

The board did not agree, based on the evidence, that there was an “out of control” culture of drug and alcohol use as alleged by Suncor. As a result, the board did not find that the benefit to Suncor in using the policy was proportional to the harm suffered by the employees subjected to the testing.

Suncor has indicated it plans to seek judicial review of the board’s decision.

This case suggests to employers that the bar is high to justify a policy of random alcohol and drug testing in a unionized workplace, unless it can obtain the union’s cooperation. Although not impossible, an employer will have to show compelling evidence of a serious problem with drugs and alcohol which creates measurable safety risks in the workplace. The employer will need to use effective tools for testing.

Finally, the employer will need to show that the safety benefits are strong enough to tip the scale and outweigh the privacy concerns at issue for employees.

Kassy Corothers