Move long time coming, but issue nowhere near settled: Experts
The internal email went out Nov. 29, 2018 — Suncor announced it had reached a settlement with Unifor Local 707A regarding alcohol and drug testing for workers in safety-sensitive positions.
That meant the company would proceed with random testing at operations in the Regional Municipality of Wood Buffalo, including Fort McMurray: “Suncor is pleased to move forward with what we believe will positively affect safety at our work sites in the region. We are committed to ensuring a workplace where everyone is fit for duty so we can all make it home safely.”
The move was a long time coming. It was back in 2012 when Suncor introduced such a policy, citing drug- and alcohol-related safety incidents at its operations.
Unifor disagreed, saying there was no evidence of a widespread problem and this was an infringement of privacy.
While a panel of arbitrators agreed with the union, the Alberta Court of Queen’s Bench sided with Suncor, saying random testing was permissible if the employer could establish there was a general problem with drug or alcohol use at the workplace, not just for unionized employees. It also said the testing was a bona fide requirement to ensure workplace safety.
The union — which represents about 3,800 Suncor workers — appealed the decision to the Alberta Court of Appeal, which upheld the Court of Queen’s Bench decision, so the union appealed that decision to the Supreme Court of Canada — while obtaining an interim injunction prohibiting Suncor from carrying out the testing.
But in June 2018, the Supreme Court denied Unifor’s appeal.
There are two key issues involved — safety and privacy, according to Loretta Bouwmeester, partner at Mathews, Dinsdale & Clark in Calgary.
“Essentially… this move, this negotiated resolution, took the wind out of the sails of those that would challenge it,” she said. “Now that one of the largest unions in the country said it’s not going to stand in the way of random testing, what impetus would there be for another union to do so? That’s why this is such a key decision.”
“It’s still not going to be common or acceptable in that many workplaces, but now it’s no longer completely remote either. Because before, if not Suncor, (then) who? The problem was if Suncor couldn’t meet the bar, it was highly questionable if anyone could.”
Random drug testing is a developing area and with the legalization of cannabis, more employers may decide to pursue such a program, said Hilary Page, labour and employment lawyer at Spring Law in Toronto.
“But it’s important to note that Suncor — they’re in Fort McMurray, they’re in Alberta — and that’s probably one of the most safety-sensitive worksites out there, so it’s a bit of unique beast.”
Suncor’s decision is a good step, said Kelsey Orth, a partner at Crawford Chondon & Partners in Brampton, Ont.
“It’s a reasonable proposition. They want to address safety and the union’s not standing in their way in that regard... But I think we’ll see a few things still to be ironed out with respect to how that policy comes into play and how it’s used.”
Union stands down — for now
The concerns around random testing that existed before are still there, but it was better to find a compromise with Suncor than draw out the legal battle, said Scott Doherty, executive assistant to the national president of Unifor.
“We came up with an agreement that both parties could live with… It was not in the sense that we gave up on the fact that our members have rights and we have concerns around random drug testing and whether or not it’s effectively controlling safety issues,” he said.
“This is about addressing an individual issue at one facility. We have lots of manufacturing in other industries where there isn’t random testing and we would fight random testing.”
The union recognized there have been serious safety issues in Fort McMurray for quite some time, said Doherty.
“Circumstances have changed from when we originally were fighting random drug testing to today, and you have to be realistic about that,” he said. “We may at some point in time have to take on that fight again. We’re hoping that we don’t have to, but we’re not prepared to just give a carte blanche to Suncor either.”
“It’s our hope that random testing isn’t going to happen at Suncor forever — I think it’s Suncor’s hope as well.”
As part of the agreement with Suncor (which did not respond to requests for an interview), there will be meetings on a regular basis to discuss issues and come up with compromises or reasonable decisions on how to proceed, said Doherty.
“There’s definitely going to be some legal challenges both within the workplace but also outside the workplace when it comes to the legalization of cannabis, but we think we have an opportunity at Suncor to continue to have conversations with them.”
Going forward, it won’t necessarily be smooth sailing for Suncor, as it will have to deal with issues around accommodation and the mechanics of the testing.
“This was about privacy and human rights but now it’ll also shift to an accommodation analysis on whether or not there’s sufficient accommodation,” said Bouwmeester.
“We do have the Elk Valley coal case, which tells us as long as you have a very strong policy that contemplates accommodation and is clear around the expectation for fitness for duty, that someone can be terminated for policy violation, not for the fact of disability.”
“It’s definitely become a high bar. As long as employers do the right thing on the front end, they’re going to be pretty defensible on the back end.”
If someone is tested and found to have alcohol in her system, for example, she could claim she has an addiction and wants accommodation, said Page.
“But the person still always has to be fit for duty. So, it doesn’t matter if I’m an alcoholic, they can’t accommodate me being impaired at work, so what that accommodation looks like has to be different in every case.”
Regardless of whether testing is allowed, there’s still a long way to go before this is a straightforward process, according to Orth.
“Even in Suncor’s case, they may still get some individual challenges based on the method of testing and so on,” he said. “That’s always been the struggle with the case law… because the testing was not as accurate, it didn’t justify the invasion of privacy.”
The issue with privacy rights of employees has always been that the only accurate ways have been blood tests or urinalysis — and even then, the accuracy was questioned, said Orth.
“Blood tests could only identify use in the past 12 to 24 hours, and that’s not with respect to marijuana necessarily, but with respect to other drugs, so it doesn’t test current impairment,” he said.
“From a urinalysis perspective, my understanding is that all it does is evaluate impairment within a three- to five-day window after exposure, and it has different impacts depending on whether it’s one time or a frequent user or so on.”
With marijuana testing, a worker may have high tetrahydrocannabinol (THC) levels, but not be considered impaired. So, the union may challenge every positive test, said Orth.
“Maybe that’s the angle Unifor is going to take — fight it on a case-by-case basis, and make it so difficult for Suncor to actually implement… I hope that’s not what’s going to happen but that may be what happens.”
Discussions with Suncor are ongoing, said Doherty.
“Obviously the testing that’s been used by the employer is... part of those conversations on an ongoing basis to ensure that our members are not being exposed and having to… be tested in a way that we don’t believe is the right way to do things, given the situation in Canada and the technology that exists.”
More effective testing tools that can show impairment are needed, because otherwise “we are left with a risk-based approach tied to presence,” said Bouwmeester.
Newer behavioural science-based approaches being developed — such as testing helicopter pilots with a simple follow-the-ball exercise — are not interested in the root cause of the impairment, and use a baseline approach to assess impairment, she said.
“We may get to a place down the road where biometrics will be the focus, and it’ll be on impairment generally and less focus on what the cause is… We’re going to see technology outpace the ethical and legal issues.”
Implications for employers
Despite the Suncor development, the law is the same for random drug testing. There needs to be a safety-sensitive workplace as well as evidence — such as near misses or accidents — that suggests a problem with substance abuse, said Page.
“(Employers) need to act reasonably, and the degree of infringement of employees’ privacy needs to be proportionate to the problem so… the greater the problem, the greater the invasion of privacy. That’s why it’s important they have evidence of a general problem with substance abuse.”
Many workplaces have zero-tolerance policies but there are challenges when it comes to contractors who are expected to abide by the same policies, said Orth.
“Relaxing of rules with respect to drug testing will hopefully pave the way for some kind of sensible program to come into play in everybody’s workplace,” he said.
“Ultimately, my advice to employers is to err on the side of caution… if you think somebody’s impaired, send them home (and) deal with the workplace consequences later rather than having to deal with an injury or catastrophic injury.”