The never-ending battle of random workplace testing
Drugs and alcohol use can be disastrous in some workplaces. But for some, the loss of privacy and personal autonomy can be too
Jun 14, 2016
By Jeffrey R. Smith
The battle over alcohol and drug testing of employees by employers doesn’t seem to end. There have been several decisions by courts and arbitrators — often overturning each other — with conflicting views on whether such testing is allowable. The focus of the battle can be whittled down to employee privacy versus the safety of the workplace.
Over the years, it’s become more accepted that unilateral random testing of employees generally won’t be allowed. Essentially, employers must have a legitimate reason for testing. As a result, alcohol and drug testing policies that are enforceable mostly consist of testing following an incident or if an employee is returning to work following rehabilitation for substance abuse — circumstances where there is reason to suspect drug or alcohol use.
Where the battlefield now lies is in the absence of these circumstances where safety is such a concern that the proactive measures trump reactive ones, and where an employer can’t afford to wait for something to happen before determining whether an employee is working under the influence.
Still, safety-sensitive workplaces aren’t guaranteed to be able to implement random testing. One case on the issue that went back and forth through various judicial levels all the way to the Supreme Court of Canada. The Supreme Court found that random alcohol testing was only permissible if the employer could prove there was a problem in the workplace.
Lower courts had found the workplace had to be considered very dangerous, but the highest court found this wasn’t necessary to prove as long as there was a clear problem with employees and intoxicating substances. See Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 CarswellNB 275 (S.C.C.).
More recently, an Alberta arbitration board found an oil company’s alcohol and drug policy went too far when it implemented random testing of all employees in safety sensitive positions — which accounted for 82 per cent of the company’s workforce. The worksite involved heavy equipment and explosive chemicals, which presented a risk to both employees and the public if something bad happened.
The company justified the policy with statistics showing more than 2,000 incidents at its worksites between 2003 and 2013 related to alcohol or drugs, but the union argued it was too much of an infringement on the rights of its members. The board quashed the policy, finding most of the incidents involved employees of contractors or non-unionized employees — only 12 incidents involved unionized employees, which wasn’t enough to prove a problem among the more than 3,300-strong union membership.
However, the company appealed, and the appeal court found that safety of the workplace as a whole was the priority. The safety of all workers was the issue, and they all worked together. So if a large number of non-unionized and contractor employees had problems with alcohol and drugs, the workplace in general had a problem — non-unionized and contractor employees made up two-thirds of the workforce at the worksites. As a result, all the information on alcohol and drug incidents in the workplace had to be considered, regardless of whose workers were causing the problem. And testing of these workers would help address the problem, said the appeal court. See Suncor Energy Inc. v. Unifor, Local 707A, 2016 CarswellAlta 921 (Alta. Q.B.).
And so the fight goes on. For some, random testing is just too much — it invades employee privacy, forces them to provide samples of their body, and certain types of testing aren’t definitive enough to warrant such invasion. For the other side, it’s the only reasonable way to reduce the chance of employees showing up for work intoxicated and causing a potentially disastrous accident.
It’s a tough balance. How important are the benefits and drawbacks? Is random testing worth it? Can employers with safety sensitive workplaces afford not to do it?
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.