It is unreasonable for an employer to agree to a third-party requirement that employees undergo mandatory drug and alcohol testing before entering the third-party’s worksite, says Ontario’s Arbitrator Surdykowski.

First Arbitration on the Issue Since Irving Pulp and Paper Ltd.

In Mechanical Contractors Association Sarnia (“Sarnia”), the employer, a contractor, provided workers to a Suncor worksite.  Suncor had a “contractor, alcohol and drug standard” that required universal mandatory pre-access alcohol and drug testing before workers were allowed on the site. The employer enforced Suncor’s policy, and this decision was challenged by the Union.

Arbitrator Surdykowski concluded that requiring pre-access drug and alcohol testing was an unreasonable exercise of management rights under the employer’s collective agreements, and further that it violated the Ontario Human Rights Code. Arbitrator Surdykowski’s reasons included:

Pre-access testing, like the random drug and alcohol testing analyzed in Irving Pulp & Paper Ltd (which we blogged about here) could not be justified solely on the basis that the worksite was a safety sensitive area. A dangerous worksite was only one factor that needed to be considered When considering whether drug and alcohol testing is reasonable, the appropriate analysis involves balancing the interests of the employer, which may include safety interests, and the interests of employees, notably their privacy interests, which the arbitrator found should be given significant weight. For safety concerns to override employee privacy concerns, it was not sufficient for the employer to show that pre-access testing “may” improve health and safety on the worksite. The employer had to point to the specific health and safety problems it was going to address through pre-access testing. The employer in this case was unable to do so. Pre-access testing is fundamentally flawed, and that it does not demonstrate present impairment at work. By its very nature, pre-access testing shows whether a person has drugs or alcohol in their system at the time of the test. It is not an accurate predictor of future use, nor is its purpose to ensure safety on the worksite that day.

Suncor’s policy required that a positive test result in the employee being banned from Suncor’s worksites. The arbitrator also noted this was an extreme and final consequence that did not consider the individual circumstance of an employee, the potential that the employee suffered from an addiction, or the potential need to accommodate an employee.

Finally, the arbitrator noted that the case law has evolved differently in eastern Canada (i.e. Ontario), from that in western Canada (i.e. Alberta). Arbitrators in western Canada have been more likely to uphold both random and pre-employment testing, citing safety considerations on the worksite. However, in many of those cases, employers were able to prove a pre-existing drug or alcohol problem on the worksite.

What This Means to You

The Irving decision required an existing alcohol problem on the worksite to justify random testing in a dangerous workplace.

Sarnia has taken that principle, and extended it to pre-access testing. If the Sarnia case is followed, employers, prior to hiring, will be required to demonstrate not only that their workplace is dangerous or safety-sensitive, but  also that there is an existing, significant problem with drug and alcohol consumption or impairment among a site’s workers.

Only then can an employer demonstrate that a pre-accident testing policy is reasonably required and a justifiable intrusion against employee privacy rates through the balancing of interests test.

Absent these factors, in the current climate, any employer who initiates pre-access drug or alcohol testing, whether unionized or not, is at significant risk of having that policy challenged and overturned.