‘Disappointed’ Suncor to continue fight to conduct random drug, alcohol tests on workers in the oil sands as courts continue to weigh fine line between privacy, safety
By Todd Humber
Canadian courts and arbitrators have proven — quite consistently over the years — that they have little appetite for random drug and alcohol testing of employees. The lone exception is the transportation industry.
But that hasn’t stopped some employers from repeatedly tweaking the ingredients to see if they can find the perfect recipe to make peeing into a cup more palatable. It’s very common south of the border, but has yet to gain any traction in Canada.
An independent arbitration panel in Alberta poured more cold water on the idea of random testing on March 26, ruling there was no evidence of an out-of-control drug or alcohol culture at Suncor’s worksites. (Jeffrey R. Smith, our employment law editor, is currently pouring over the ruling, which he’ll summarize in the April 21 issue of Canadian HR Reporter.)
The employee’s right to privacy versus the employer’s obligation to provide a safe working environment is a monumental clash — and why the arbitration ruling weighed in at a hefty 144 pages. Both sides can make pretty strong, compelling cases.
The employee’s view
Workers have a strong opinion that what they do on their own time is none of the employer’s business. Sure, they’ll agree that workers should not report stoned or drunk, but absent some legitimate suspicion — or a pattern of incidents in the workplace — they should be left alone. Random testing is an intrusion of their privacy, and it can’t be taken lightly.
The employer’s view
Employers take a different view. They know they’re liable for maintaining a safe workplace, and a random drug and alcohol test combined with zero tolerance policies serve as a significant deterrent to workers who might otherwise show up impaired. Plus, the testing technology has gotten better — many tests can now show current impairment, not just whether the employee has recently smoked pot or taken other illegal drugs.
And what exactly constitutes an out of control culture? At Suncor, there have been three deaths in a seven-year period where drugs and alcohol were a factor, according to Reuters. And the company has already maxed out its testing options — it tests workers before they are certified to work and post-incident. Three deaths certainly isn’t acceptable. Even one death isn’t acceptable, and frankly one injury related to drug or alcohol use is pretty tough to defend. But where is the line drawn on what constitutes an “out of control” culture of drugs and alcohol?
Check out this stat: Between 2004 and August 2013, there were 2,276 “security incidents” at Suncor involving drugs and alcohol. That certainly sounds out of control, but it may be no worse than what happens in the general population.
Suncor has already announced its intention to appeal the arbitrator’s decision. Sneh Seetal, a spokeswoman for Suncor, told Reuters the company is “disappointed” with the ruling.
“Over the last 20 years, we have tried to address safety concerns around drugs and alcohol, but none of those measures have appropriately mitigated the risk,” Seetal told Reuters.
Suncor is clearly determined to find a way to conduct random tests, and isn’t taking no for an answer. The Alberta Court of Queen’s Bench will be tasked with ruling on the appeal, and it’s impossible to predict which way it will go.
But it’s becoming more difficult to imagine, in an era where more onus and liability is being placed on employers to provide safe working environments — and with improvements in testing technology that can truly show current impairment — that random drug testing won’t gain a stronger foothold in Canada.
But even if that happens, a positive test won’t necessarily be grounds for termination. At that point, other programs such as EAPs, treatment and counselling will need to spring to life to help the worker. Employers have an obligation to accommodate employers with a disability — and addiction to drugs and alcohol is a disability. That’s one area of employment law that definitely won’t be changing anytime soon.
Todd Humber is the managing editor of Canadian HR Reporter, the national journal of human resource management. He can be reached at firstname.lastname@example.org or visit www.hrreporter.com for more information.