Hairy Drug TestSuncor Energy Inc., Oil Sands’ attempt to implement random alcohol and drug testing of safety-sensitive employees at Suncor oil sands operations was recently rejected by the Alberta Arbitration Board after hearing a grievance filed by Unifor, Local 707A, representing Suncor employees at its Fort McMurray operations. The Board found Suncor’s Policy to be an unreasonable exercise of management rights.

Unifor argued that the policy is intrusive and extraordinary because it subjects all employees to drug and alcohol testing, regardless of any precipitating event. Suncor claimed the policy met the test established by the Supreme Court by demonstrating “evidence of a problem with alcohol and drugs” at its workplace in Fort McMurray (see Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd, 2013 SCC 34).

The Board found that Suncor’s positive alcohol tests did not establish a significant problem or legitimate safety risk and that Suncor’s evidence failed to demonstrate a problem with alcohol among its Unifor employees. Suncor also couldn’t convince the Board of an “out of control drug culture” at its workplace that would justify random testing as a privacy-intrusive measure. In line with previous court rulings, the Board concluded that Suncor’s method of testing urine for drugs showed only whether an employee had recently used drugs but failed to identify current levels of impairment.

The Board suggested a reasonable Policy would include the application of principles and standards from Alberta’s Drug and Alcohol Risk Reduction Project (see www.darrpp.ca). These guidelines promote carrying out a time-limited trial project, measurement of effects and results, respect for employees’ dignity, a dispute solution mechanism, a clear “under the influence of alcohol or drugs” prohibition, an employee assistance program, consistent training, and oral fluid testing.

Suncor intends to seek judicial review of the Board’s ruling.

A few privacy points for companies and organizations who are currently implementing drug and alcohol programs:

  • Although the door is not shut, it is clear once again that random drug testing only meets human rights and privacy compliance standards in demonstrated cases of extensive and comprehensive drug and alcohol abuse within a limited workplace environment, and only for safety-sensitive roles. The bar is and will remain very high and those cases that meet them will be exceptional.
  • Tests for alcohol levels are currently more effective in identifying policy violations than for drug use in the workplace. That helps to justify use of random testing for alcohol abuse as a legitimate measure under employee privacy rules, but again only in exceptional cases.
  • This case involved unionized employees, but the privacy standards, in Alberta and BC at least, apply to all employees, whether unionized or not. It is very likely that an individual complaint to the Office of the Information and Privacy Commissioner of Alberta, for instance, would result in an order following the same reasoning.

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Cenera’s Privacy and Information Practice brings a wealth of experience and expertise to its private and public-sector clients in assessing, designing, and implementing privacy and information management programs, policies, and services. For more information on how we can help and support you, go to Privacy and Information Management/cenera.ca or contact Rick Klumpenhouwer, Partner, Privacy and Information Management Practice, Cenera, 403.294.3799 or [email protected].