Employers push testing for safety-sensitive positions, unions say it is too intrusive
Unions and employers are anxiously awaiting rulings in two high-profile court cases that could determine the future of random alcohol and drug programs in Canadian workplaces.
Both cases demonstrate the friction between workers and managers as they try to reconcile privacy and dignity with safety on the job.
In Alberta, the province’s Court of Appeal recently upheld an injunction halting the introduction of Suncor Energy’s new random drug and alcohol testing program until an arbitration board has ruled on a grievance objecting to the program.
In New Brunswick, Irving Pulp and Paper wants to continue with random alcohol tests against the protest of the union representing its workers — a challenge that has gone all the way to the Supreme Court of Canada. The case was heard in early December.
Meanwhile, against this backdrop, employers, labour organizations and industry associations in Alberta are launching a two-year pilot project in the oilsands and construction sectors that includes random drug testing.
According to a 2006 study in the Canadian Journal of Public Health, about 10 per cent of Canadian work sites have drug and alcohol testing programs. Most often, these programs involve testing for one of three reasons: pre-employment screening, post-incident screening or where an employer has reasonable cause to believe an employee is impaired.
The controversy in both of the current legal cases stems from random testing.
In the Irving case, a worker who does not drink alcohol felt violated after being subjected to a random alcohol test. In the Suncor case, the union argues the company’s random testing program, which targets workers in safety-sensitive or specified positions, violates privacy and human rights laws.
“There is no such thing as a safety-sensitive position,” says Dave Coles, president of the Communications, Energy and Paperworkers (CEP) union, which represents workers in both cases. “There is no job that can tolerate any form of impairment — including prescription drugs.”
He says the union has reluctantly agreed to the other forms of drug and alcohol testing after losing several court battles on those fronts. Random testing, on the other hand, is an issue he says the union won’t back away from.
“There is no correlation between drug and alcohol testing and safety,” Coles says. “This is about power and control of a work site.”
There are conflicting opinions about the efficacy of drug and alcohol testing. While breathalyzer tests measure impairment at the time of the test, urinalysis tests are less refined. They can detect drug use weeks prior to the test.
“If you chase someone off (after failing a drug test), they just go to a different work site. You haven’t solved the problem,” Coles says. “No one is any safer after you have invaded my privacy.”
It’s a position shared by the Canadian Civil Liberties Association (CCLA), an intervener in the Irving case at the Supreme Court.
“Workplace safety is incredibly important,” says Abby Deshman, a CCLA lawyer in Toronto. “The question is what policies you’re putting in place to fix the problem.”
Random drug and alcohol testing is an affront to personal dignity because it can expose things about people’s personal lives that allows employers to “make assumptions” about them, Deshman says.
She also questions why only workers in industrial settings are being asked to forego their privacy in the name of safety.
“We should be concerned about all workplaces,” Deshman says. “For example, teachers are looking after children. Wouldn’t that be safety sensitive? We don’t want them showing up intoxicated.”
But employers argue there is a deterrent effect for employees in knowing they could be tested at any time and say random testing is just another tool in the box when it comes to safety.
“In the Alberta oilsands, we’re dealing with heavy haulers that are 20 times the size of an average vehicle. You could run over someone without even knowing it,” says Birch Miller, a lawyer at Gowlings in Calgary who specializes in this area of law. “The safety implications of what can occur are outside the realm of most jobs. One slip up and someone can die.”
Drug testing has come a long way since the creation of the so-called “Canadian model” — an industry standard — more than a decade ago, says Miller. The tests themselves are more sensitive and she says the protocols and procedures adopted by most employers have also been refined to protect privacy and dignity.
For example, many policies provide everything from accommodation and counselling after a positive test to deleting the results from an employee’s record after a determined period of clean tests.
Although some workers may be offended by random testing, particularly if they abstain from drugs or alcohol for personal or spiritual reasons, Miller says the trade-off is a safer workplace for all employees.
The Alberta pilot project, known as the Drug and Alcohol Risk Reduction Pilot Project (DARRPP), is intended to evaluate and report on the effectiveness of workplace programs.
There’s a “very worrisome trend” of drug and alcohol use, particularly in heavy industry, says Larry Staples, a member of the Construction Owners Association of Alberta, the organization that devised the Canadian model, and he looks forward to the results of the DARRPP.
“Safety has to be paramount,” he says. “We have to worry about being safe first, then smoothing out the process.”
