Citing concerns for workplace safety, particularly in the oil-and-gas sector, employers in Alberta are increasingly emboldened in calling for random and pre-employment drug testing, two types of drug testing generally considered illegal.
Their efforts include a recommendation from employer groups, recently leaked to the media, for random drug tests in hazardous environments. It was submitted to the former Minister of Human Resources and Employment in the summer of 2003.
Many employers are not waiting for the government’s green light on this issue, however. Pre-employment and random drug testing has become widespread in oil and gas industries, with employers putting the onus on employees and unions to challenge the policies. Overall, there’s a sense around the province that the jurisprudence around this issue is far from settled.
“Certainly there seems to be more and more drug testing,” said David Nesbitt at the Alberta Alcohol and Drug Abuse Commission (AADAC), though adding that he doesn’t have any statistics on the use of random or pre-employment testing. The figures that the commission does have show that between 1992 and 2002, the use of alcohol or drug tests has increased from one per cent to eight per cent of workplaces surveyed, based on a study of 2,900 employees, 750 employers and 90 union representatives. It’s unclear, however, what portion of this is pre-employment or random testing.
“And again, this is anecdotal, but I am aware that sometimes, (companies that do testing) will arrive at a worksite in Northern Alberta, and they’ll test 100 employees in one go,” said Nesbitt.
Random drug testing is still quite rare, said employee assistance program consultant Beverley Abbott of Organizational Health Incorporated, adding that when employers use them, it’s typically because they’ve heard rumours of rampant drug use associated with a particular site, and they’ll go in and test everyone on a crew.
Pre-employment testing is far more common, with employers like Suncor and Petro-Canada telling job candidates that they’ll have to submit to such tests, said Abbott.
“It started out with some companies introducing pre-employment testing, and of course as word gets out that one company does pre-employment testing another company doesn’t, everybody who knows they’ll fail a pre-employment drug test will go and apply with the other company.”
The majority of testing takes place following an accident, a near miss or a performance problem observed by a supervisor, according to the AADAC survey. More than half (56 per cent) of the employers polled said they would dismiss employees who cause or contribute to an accident in which someone was injured and alcohol or drug use was suspected to have played a role.
Abbott, whose job is to assess people who have tested positive to determine whether the drug use is chronic or occasional, said employers are mostly aware of the need to manage the issue.
“I have never seen a case where someone tested positive and they get terminated. It just doesn’t happen anymore. Employers know they’re obligated to offer treatment.”
Still, despite the absence of testing mechanisms to distinguish the worker who occasionally uses drugs from the worker who is actually impaired at the time of testing, the general expectation among employers is once caught, the worker is expected to stay clean for a period of time, typically three months, said Abbott. During that time, they are often subject to random drug tests to prove that they’re complying with the treatment set out.
The fact that drug tests can’t prove impairment is one of the reasons that they’ve generally been considered illegal since 1999, when the Ontario Court of Appeal ruled on Imperial Oil’s drug and alcohol testing policies in the Entrop case. However, given the interest in the practice among Alberta employers, the case law on the issue will likely change in the next two or three years, said Bill Johnson, partner at the Calgary-based law firm McGown Johnson.
“I think it’s a fallacy to think that the law as it is today is necessarily going to be the law two or three years from now,” said Johnson. “I think we’re in an evolutionary area of the law. And I think therefore it’s going to be pushed and you’ll see some new decisions and it’s possible that pre-employment testing may be permitted in some situations and not in others.”
One factor that will have an impact on the case law is the fact that it’s not just employers but also site owners that are putting in place the requirement for testing, particularly as a condition of employment.
“They have a very dominant force, and they are saying, ‘We have billion-dollar projects. We have all kinds of sorts of exposure. We want pre-employment testing, and we want random testing.’ And my understanding is to get onto a site now, pre-employment testing is an expectation.”
The role of owners raises a host of new questions for the courts, said Johnson. “If the general way this issue is challenged is as a human rights challenge, and human rights applies to the employer-employee relationship, it’s unclear whether or not human rights apply to an owner in allowing someone coming on or off the property.”
The duty to accommodate will also be in doubt, Johnson added. “If you get the owner that’s requiring the test, where’s the duty to accommodate when the owner doesn’t have an employment relationship?”
The recommendation for random testing made to Alberta Human Resources and Employment originated within a committee convened in 2002 as part of the province’s push to curb workplace accidents and injuries. Called the Alberta Advisory Committee on Impairment in the Workplace, the committee comprised of a cross-section of unions, employer and owner groups, AADAC and the Alberta Human Rights and Citizenship Commission. (The new minister, Mike Cardinal, is still studying the report and will make it public in the next few weeks in the legislature, said department spokesperson Chris Chodan.)
As AADAC and the human rights commission remained opposed to random drug testing, the recommendation was submitted in a “dissent report,” said Mark McCullough, executive director of the Alberta Building Trades Council, which also backed random testing. The employer and owner groups that supported the recommendation were not available for an interview.
Representatives from the Alberta Federation of Labour and the Communications Energy and Paperworkers Union were initially part of committee but quickly withdrew. Kerry Barrett, president of the AFL, said the federation withdrew early in the process because “none of our concerns were being registered.” She added that employers pushing for random drug testing are only after another tool with which to manage employee problems, such as absenteeism and tardiness.
McCullough of the Building Trades Council said the main reason the council supported random drug testing is to help identify problem users so that they can receive prompt treatment.
“The intent is not to find and fire, but to find and fix. It’s not to root people out and get rid of them but to find people who have a problem that can be a safety risk at work sites and let’s fix them,” he said.
McCullough noted that the recommendation only calls for random drug testing in hazardous environments. “Some unions view it in terms of, what a member does on his own time is none of the employers’ business,” he said. “They lose sight of what we all try to do here which is to balance your right to do what you want on your own time with your obligation as a worker to provide a safe work environment.”
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