Random drug, alcohol testing struck down at Suncor (Legal View)

Company failed to prove there was a problem with intoxicants at oil sands operations in northern Alberta
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 04/20/2014

Energy company Suncor is the latest employer to have random drug and alcohol testing shut down after an arbitrator followed the Supreme Court of Canada’s determination that the cons of such testing outweighed the pros without proof of a significant problem.

Suncor has oil sands extraction operations in two locations in northern Alberta: a base plant in the Regional Municipality of Wood Buffalo, about 30 km north of Fort McMurray, and a smaller operation at McKay River and Firebag, about 120 km north of Fort McMurray.

As of July 2013, there were more than 3,300 unionized workers, almost 3,000 non-represented workers and up to 3,400 contractor employees.

Much of the activity in Suncor’s oil sands operations involved heavy equipment and dangerous activities, so safety was a constant concern — something aided by employees working with a clear head and maximum abilities. To that end, in 1999, the company introduced pre-employment drug and alcohol testing for all new hires.

In 2003, Suncor introduced a policy that allowed for alcohol and drug testing of employees via urinalysis if there was an incident at the workplace, if there were reasonable grounds to suspect impairment or if someone was completing rehabilitation and returning to work after drug- or alcohol-related issues.

After the union grieved the policy, several changes were made, including the adoption of a “fit for duty” standard for employees — that is, “being physically and mentally fit to safely perform assigned duties without excessive risk or harm to yourself or others.”

The company followed this up with a pre-access standard for contractors with access to Suncor sites and, in 2008, the use of sniffer dogs to root out drugs in Suncor-owned accommodation facilities. In 2009, Suncor implemented an alcohol-free lodge policy.

In 2012, the company informed the union it was introducing random drug and alcohol testing for employees working in safety-sensitive positions, which described about 82 per cent of unionized employees in the oil sands operations.

The new policy also gave Suncor supervisors discretion to allow employees to return to work if they tested positive with a 0.02 to 0.039 per cent blood alcohol concentration.

The union grieved the new policy, arguing it was “unjustifiable, unreasonable and violates employees’ privacy rights, human dignity, and human rights. The policy sanctions unreasonable and unjustifiable searches of employees’ persons.”

The union provided accounts given by employees who had undergone testing under Suncor’s previous policy, who described the testing process as stressful, humiliating and disrespectful.

Couldn’t afford any bad judgment: Company

Suncor countered that its oil sands operations included complex mining, industrial and upgrading equipment and its operations were “complex and hazardous” with “a number of risks to people, property and the environment on-site.”

Any inattention or mistakes made by employees could lead to “catastrophic consequences” in a workplace featuring high pressures and temperatures, as well as heavy equipment, which could result in an explosion. Any impairment of an employee could have extremely serious repercussions, said Suncor.

The company described three fatalities since 2009 in which it was known drugs or alcohol had played a role:

•A contractor employee who consumed alcohol and cocaine, stole a van and then climbed up a structure and jumped off.

•A contractor employee who was killed by the rim of a truck tire after the tire deflated while being repaired.

•A contract employee in camp who choked on his own vomit after consuming a large amount of alcohol.

Suncor was also concerned about the number of positive tests under the previous policy implemented in 2003 — over nine years, 224 (216 unionized employees) tested positive for various substances, including marijuana, cocaine, heroin and opiates. Suncor security has also found devices used to defeat drug tests and indications of drug trafficking at its work camps.

The oil company noted there had been a decrease in positive tests since the changes made to the policy in 2009, but the number was still unacceptable to the company, given its safety concerns.

The union characterized most of Suncor’s evidence justifying random drug and alcohol testing as “unparticularized evidence, anecdotal evidence, broad-based inferential reasoning and unsupported presumptions.”

The arbitration board noted that employers have the right to review and alter a policy, but unless they have union agreement, the policy must be consistent with the collective agreement, reasonable, clear and unequivocal, brought to the attention of employees before implementation, and consistently enforced.

The board also noted drug testing by urinalysis was not as effective as breathalyzer in determining current impairment, as the Supreme Court of Canada determined in its 2013 decision Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd.

This created a problem in that the advantage of random testing in a safety-sensitive situation was to identify and remove an impaired individual from the workplace. Using urinalysis raised questions over whether it was worth it considering the personal harm caused to employees, particularly since it was more intrusive than other methods such as breath testing, said the board.

And though Suncor claimed there was danger inherent with the slightest inattention or mistake at its oil sands operations, its policy was not zero tolerance and supervisors had leeway to make a judgment call on whether an employee who tested positive with a small amount was fit to work, said the board. However, “in a random testing regime, a positive test will be the only result on which significant discipline — or even dismissal — may rest.”

The board looked to the Supreme Court of Canada’s determination in Irving that random testing is only warranted if the employer establishes there is a “general problem” with drug or alcohol use in the workplace.

Suncor presented reports showing issues with positive tests, evidence of drug and alcohol use by workers and the three deaths on-site, and the company also argued any instances were unacceptable in such a safety-sensitive environment.

However, the evidence showed the policy and testing regime already in place — post-incident and return-to-work after rehab testing — showed a decrease in positive tests, from 8.6 per cent in 2009 to 3.5 per cent in 2012, found the board. This decrease was also at the same time Suncor’s workforce increased substantially, the board pointed out.

Also, Suncor didn’t present evidence that showed the incidents for which the testing was done had been proven to be the result of drug or alcohol use.

Company’s figures didn’t differentiate between employees, contractors

Most of the incidents took place in the work camps, found the board, which had mostly contractor employees on-site, as most unionized employees lived nearby. And only slightly more than one-half of one per cent of security incidents specifically referred to a unionized Suncor employee.

Additionally, all three fatalities Suncor mentioned were contractor employees. Without evidence of significant use by unionized employees, it was unfair to paint them with the same brush by forcing them into random testing and the privacy violation it involved, said the board.

“The evidence does not demonstrate a culture at the oil sands operations where the consumption of alcohol is so pervasive as to be accepted by employees, where employees go together to drink openly and where such activity is either condoned or encouraged by management’s practices or inaction,” said the board.

Suncor did not prove drug and alcohol use was connected to the accident and near-miss history of its oil sands operations, found the board. Without this correlation, and the fact urinalysis does not demonstrate current impairment, Suncor’s random testing policy was an unreasonable exercise of Suncor’s management rights, said the board.

Suncor said it would appeal the decision.

For more information see:

Unifor, Local 707A and Suncor Energy Inc., Oil Sands (March 18, 2014), Tom Hodges – Chair (Alta. Arb.).

Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 (S.C.C.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information

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