Random drug and alcohol testing violates basic human rights, judge rules

Does privacy trump security? That question has been repeatedly raised, especially when it comes to random drug and alcohol testing, which has been the focus of courts across the country in recent months.

One of the most recent cases originates in Sarnia, Ont., where a group of about 70 construction workers contracted by major companies such as Suncor, IOL, DuPont and Nova Chemicals were victorious in quashing their employer’s bid for pre-access random drug and alcohol testing.

The Sarnia Construction Association (SCA) is a multi-trade employer’s organization consisting of the aforementioned major companies, and which administers collective bargaining for its construction contractors and suppliers.

The association adopted a random drug and alcohol testing policy which, it said, provided a safe workplace.

While each of the companies have unique provisions outlining random testing policies, all have embraced some form of the system. However, the SCA’s overall policy (under which all of its bargaining unit members must comply) only applies for reasonable cause and post-incident reasonable cause testing. It does not mention random or pre-access testing.

That posed a problem for the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (UA) — the union which represents the SCA’s employees.

Suncor, an energy company that is no stranger to random drug and alcohol testing litigation, demanded that all employees under the SCA would need to conduct pre-access testing as a precondition to deployment on any job site.

That means the worker would have to undergo breath, saliva, oral fluid or urine testing.

In Alberta, Suncor Energy tried to implement a random drug and alcohol testing policy for its workers. However, the union launched legal action against the company, taking its case all the way to the Supreme Court of Canada.

And it was not alone. In Saint John, N.B., kraft mill Irving Pulp and Paper also took its case to the country’s top court. This time, the court decided an employer must show reasonable justification in order to impose random testing on its employees.

Back in Sarnia, citing a breach of privacy rights, the UA filed a grievance, calling Suncor’s policy a violation of the collective agreement and an affront on human rights.

According to the union, the policy was "based on an erroneous and baseless assumption that a positive pre-access drug test, or a refusal to take such a test, will indicate a heightened workplace safety risk due to impairment."

Merely asserting that the testing is in the interests of health and safety is insufficient to justify a serious infringement of employee off-duty work conduct and bodily integrity and privacy, the union continued.

Essentially, the UA argued that just because a worker tests positive for drugs or alcohol prior to the job, or they refuse to be tested, does not automatically make the site less safe.

However, the SCA did not see the situation in the same way. Alcohol and drug policies are implemented not only to ensure a safe work environment, but to take precautionary measures to guarantee just that.

"Alcohol and drug policies are necessary because common sense suggests that some employees attend work under the influence of alcohol or other drugs, and that in addition to not being fit for duty, such employees create health and safety risks which can result in a potentially catastrophic accident at worksites like Suncor’s," the SCA said during the hearing.

"Pre-access alcohol and drug testing is therefore a necessary and critically important risk identification and management component of a health and safety risk mitigation and management strategy on safety-sensitive worksites," it went on to say.

But while random testing systems are typically applicable only for "safety-sensitive" positions, the arbitrator said on a construction site, all positions appear to be "safety-sensitive."

In his decision, arbitrator George Surdykowski sided with the union. He ruled pre-access alcohol and drug testing required by Suncor is contrary to the UA’s collective agreement, as well as a direct violation of the Ontario Human Rights Code.

"In short, the pre-access alcohol and drug testing in issue casts too broad a net," Surdykowski’s decision reads. "It is bound to capture employees who are not impaired, performance deficient and who present no workplace health and safety risk. Employees who are not impaired or performance deficient during working hours due to alcohol or drug use are treated as though they are or will be. At the same time, impairment or performance deficiencies for reasons unrelated to alcohol or drug use are ignored."

The grievance was upheld.

Reference: Sarnia Construction Association (SCA) and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 663 (UA). George Surdykowski – sole arbitrator. Richard Charney, Pamela Hoffman for the SCA, Michael McCreary, Amy Stein for the UA. June 24, 2013.