An Alberta Arbitration Board has recently released its decision in the closely followed case of Unifor, Local 707A v Suncor Energy Inc regarding Suncor's random drug and alcohol testing policy for safety sensitive union employees. As some will recall, this is the same case that generated the decision by the Alberta Court of Appeal in 2012 upholding an injunction on random alcohol and drug testing while the Suncor arbitration was heard, on the grounds that random testing prior to the arbitration decision would cause irreparable harm to union members.
The Suncor arbitration decision is the first case in Alberta to consider the issue of drug and alcohol testing since the Supreme Court of Canada rendered its decision in the Communications, Energy and Paperworkers, Local 30 v Irving Pulp & Paper Ltd in June 2013, which imposed significant limits on an employer's right to conduct random alcohol testing. In particular, the majority of the Supreme Court in Irving found that, absent extraordinary circumstances, an employer may not unilaterally impose random alcohol testing of employees, including safety sensitive employees, even where the workplace is inherently dangerous. For extraordinary circumstances to be found, the Supreme Court held that it will usually be necessary for the employer to produce evidence of a pervasive problem with alcohol misuse in the workplace.
In Suncor, the company introduced a random alcohol and drug testing policy for all safety sensitive union employees at its oil sands operations in Alberta. The union filed a grievance challenging the random testing policy. In defending the grievance, Suncor emphasized the safety sensitive nature of its oil sands operations and the potential for catastrophic consequences from alcohol and drug misuse. Suncor also introduced evidence of problems with alcohol and drug abuse at its oil sands operations, and anecdotal evidence regarding drug and alcohol use in the Fort McMurray area generally. The union, on the other hand, argued that Suncor's approach (which included urinalysis drug testing) was especially intrusive and that there was no significant evidence of alcohol or drug misuse among union members. The union also pointed to safety statistics which showed a general decline in safety related incidents at Suncor's oil sands operations.
In considering the evidence, the Arbitration Board in Suncor applied the test set out in Irving and found that there was insufficient evidence to establish a connection between alcohol and drug abuse and the safety record at Suncor's oil sands operations, and that Suncor had failed to prove there was an out of control drug culture among unionized employees. The majority of the Arbitration Board held that in order to succeed, Suncor must produce evidence of alcohol and drug misuse from the unionized worksite, involving union members, and was critical of Suncor's evidence which failed to distinguish between union and non-union employees, and focused on camp accommodations (where few union members worked) rather than the unionized worksite.
With respect to random drug testing, the Arbitration Board found there was an additional factor to be considered, which is that urinalysis drug testing does not demonstrate current impairment. As a result, Suncor was unable to prove that a positive drug test alone could establish a link between drug use and impairment leading to an accident, injury or near miss.
Finally, the Arbitration Board noted that oral fluid testing was available as an alternative to the urinalysis drug testing required by Suncor, and is much less intrusive.
As a result, a majority of the Arbitration Board concluded that the safety gains Suncor could achieve from random drug and alcohol testing of unionized, safety sensitive employees were insufficient to justify such testing, and found the Suncor random testing policy to be an unreasonable exercise of Suncor's management rights.
The majority of the Arbitration Board in Suncor did leave open the possibility that random testing could be introduced in some cases, where circumstances warrant, in accordance with the Drug and Alcohol Risk Reduction Pilot Project, which recommends introducing random testing as a time-limited trial project, the measurement of effects and results, ensuring respect for the dignity of employees, a dispute resolution mechanism, a clear and unequivocal "under the influence of alcohol and drugs" prohibition, an employee assistance program, consistent training and the use of oral fluid drug testing as opposed to urinalysis.
Suncor has announced that it will seek judicial review of the Arbitration Board's decision, which was not unanimous (the Suncor nominee to the Board dissented). It is therefore likely there will be further consideration of this issue in the coming months. The decision by the Board does, however, emphasize the significant evidentiary challenges that employers will be required to meet in order to justify random drug and alcohol testing under the test established by the Supreme Court in Irving, and that employers must carefully consider their testing policies to ensure accuracy, confidentiality and minimal intrusiveness on employees.