Random Drug and Alcohol Testing
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Random Drug and Alcohol Testing
- 1. Osler, Hoskin & Harcourt LLP Thomas Kehler, Brian Thiessen, Damian Rigolo & Shaun Parker Random Drug and Alcohol Testing and Employer Learnings from Suncor v Unifor March 15, 2017
- 2. 2 DRUG AND ALCOHOL TESTING Agenda 1. Overview of D&A Testing (Irving) 2. Post Irving Case Law and Arbitral Decisions 3. Suncor v. Unifor 4. Practical Suggestions 5. Questions
- 3. Overview
- 4. 4 Overview DRUG AND ALCOHOL TESTING • Employers have a statutory obligation to provide a safe workplace and, accordingly, have a legitimate interest in doing so. • There is no legislative regime in Canada that specifically governs drug and alcohol testing in the workplace: case law and arbitral jurisprudence. • Balance between an employer's legitimate interest and obligation to provide a safe work environment and an employee's privacy and human rights.
- 5. 5 Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 ("Irving") DRUG AND ALCOHOL TESTING • Random alcohol testing- an employer must establish that its workplace is: (i) dangerous; and (ii) an employer “must provide evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.” • Irving provides little guidance with respect to the degree of seriousness of a drug or alcohol problem in the workplace that is required to justify random testing. • "only" 8 documented incidents of alcohol consumption or impairment in the workplace over a period of 15 years – held to be insufficient. • The deterrence value of random testing was not given real consideration.
- 6. 6 Overview DRUG AND ALCOHOL TESTING TESTING METHOD PERMISSIBILITY Pre-Employment Testing Possibly. Universal Random Testing Possibly, in a dangerous workplace with enhanced safety risks such as demonstrated problems with drug and alcohol abuse. However, the Supreme Court of Canada has noted that such safety risks would have to outweigh the "unassailable conclusion" of the "significant inroads" that random testing would have on employee privacy. Reasonable Cause/Post-Incident Yes. Post-Reinstatement Testing Yes, as a necessary facet of a broader assessment process (for a stipulated term only, most commonly 2 years). Mandatory Disclosure of Current Problem Yes. Mandatory Disclosure of Past Problem Limited to a 5 to 6 year period after successful remission for alcohol, 6 year period for drugs.
- 7. Post Irving
- 8. 8 Post Irving Case Law and Arbitral Decisions Bombardier Transportation and TCRC, Division 660, Re, 2014 CarswellNat 240 (CROA&DR) • Arbitrator partially allowed grievance – upheld provision for test when moving to safety sensitive position (but not between safety sensitive positions) – invalidated provision that would automatically find failing employee unqualified to perform their job. [Pre-Access and Post- Incident] Suncor Energy Inc. v. Unifor Local 707A (Suncor Energy), Re, 2014 CarswellAlta 457 (AB LA) • Arbitrator permits grievance and finds policy was unreasonable use of management rights. [Random] Teck Coal Limited v United Steelworkers, Local 9346, 2014 CanLII 37907 (BC LA) • Grievance sought to strike down Teck’s random drug and alcohol testing -- Teck established significant risks of industrial accidents at its workplace (no history of accidents caused by impairment) -- grievance struck as safety outweighed employee’s privacy concerns. [Random] Mechanical Contractors Association Sarnia v UA, Local 663, 2014 ONSC 6909 • ONSC upholds arbitrator’s decision to invalidate policy –- no evidence of alcohol or drug problem, or record of safety incidents at a “safety-sensitive” worksite –- policy not “reasonably necessary”. [Pre-Access] DRUG AND ALCOHOL TESTING
- 9. 9 Post Irving Case Law and Arbitral Decisions Teck Coal Limited and UMWA, Local 1656, Re, 2015 CarswellAlta 2237 (AB LA) • Similar grievance allowed by arbitrator -- arbitrator found no enhanced safety risk, consistent positive tests, or link between workplace incidents and drug or alcohol use. [Random and Post-Incident] Agrium Vanscoy Potash Operations and USW Local 7552, Re, 2015 CarswellSask 1 (SK LA) • Arbitrator allowed grievance – Agrium provided evidence of drugs and paraphernalia – insufficient evidence of problem with drug abuse in specific bargaining unit bringing the grievance. [Random] Amalgamated Transit Union, Local 113 v TTC (March 2017) • The union is seeking an injunction to block the TTC’s plan to implement random drug & alcohol testing for all safety sensitive positions commencing on April 1, 2017. • 11,000 random tests carried out between October 2010 and December 2016 found 291 documented cases of questionable behavior. There were also 45 instances of employees buying or selling drugs or alcohol on the job. [Random] DRUG AND ALCOHOL TESTING
- 10. Suncor v Unifor
- 11. 11 Overview of Suncor’s Challenge • Current status of Suncor’s random testing challenge. • How much “evidence of a problem” is enough? • Considerations re: method of testing – urine or oral swab? • Practical problems of arbitral deference and thoughts on mitigation. DRUG AND ALCOHOL TESTING
- 13. 13 Practical Suggestions • Have a D&A policy and protocols/procedures in place; • Have a strong OHS policy and protocols in place; • Train front-line managers/supervisors on policies and protocols every 1-2 years • Tailor the policies to address the issues raised by caselaw: ◦ Random Testing – tie its use to situations of drug and alcohol abuse issues; and ◦ Post-Reinstatement Testing – use the language of the caselaw (eg. Time horizon) DRUG AND ALCOHOL TESTING
- 14. 14 Practical Suggestions • Keep records of workplace safety incidents; • Keep records of drug and alcohol “incidents”/employees, whether safety or operationally related or not; and • Complement D&A testing regime with management observation: ◦ Caselaw: both union and non-union, gives deference to managements’ observations • Slurred speech, unsteadiness, red eyes, etc; and • This is just as important as testing. DRUG AND ALCOHOL TESTING
- 15. 15 Practical Suggestions • Decision-makers will be more likely to uphold drug and alcohol testing policies that are tailored to address legitimate workplace safety hazards which can be demonstrated with concrete evidence of workplace drug or alcohol problems. • An employer that wants to implement random drug and alcohol testing will need to lead evidence of a general workplace problem with drugs or alcohol, as well as evidence of the inherent dangers in its workplace if such problem is not addressed. DRUG AND ALCOHOL TESTING
- 16. 16 Brian Thiessen Partner, Employment & Labour and Privacy & Data Management bthiessen@osler.com 403.260.7018 604.692.2764 Damian Rigolo Partner, Employment & Labour drigolo@osler.com 403.260.7046 Shaun Parker Associate, Employment & Labour sparker@osler.com 403.260.7013 604.692.2765 OSLER CONTACT INFORMATION Special thanks to Thomas Kehler, VP Legal Affairs at Suncor Energy for his valuable input.
Editor's Notes
- [BRIAN] General Introduction: Good morning, we’re happy to be here talking to you today about an increasingly important topic – cybersecurity. My name is Brian Thiessen, and I’m a partner in the employment and privacy groups here with Osler here in Calgary. I’m joined by Shaun Parker and Adam LaRoche, my associates who practice in the same areas. We also have a special guest speaker here with us this morning – Jonathan – who is with the Canadian Security Intelligence Service, or “CSIS” as you might otherwise know it. You might be wondering why our law firm has teamed up with one of Canada’s national intelligence services to bring you this presentation. The answer is this – cyber attacks and data breaches are no longer simply a concern at the organizational or corporate level. As we’ll discuss, these incidents are often state level – and sometimes state sponsored – events that engage national security concerns. The companies represented in the room here today control a sizeable piece of the “critical infrastructure” needed for Canada’s economy (and society) to continue to function properly. This is particularly true for our energy companies, who hold the dubious honour of being the most cyberattack-targeted sector, after government. And while the average cost of a data breach in Canada costs the target company a little more that $6 million (Spotlight Article), the cost of an especially effective cyberattack to the Canadian economy could be much, much higher.
- [PANEL] (1) Overview of D&A Testing (Irving) (10 Minutes - Brian) (2) Post Irving Case Law and Arbitral Decisions (10 Minutes - Shaun) (3) Practical Suggestions (10 Minutes – Damian) (4) Suncor v. Unifor ( 15 Minutes - Thomas) (5) Questions (15 minutes – Panel)
- [BRIAN]
- [BRIAN] Employers have a statutory obligation to provide a safe workplace and, accordingly, have a legitimate interest in doing so. There is no legislative regime in Canada that specifically governs drug and alcohol testing in the workplace: Case Law and Arbitral Jurisprudence. Balance between an employer's legitimate interest and obligation to provide a safe work environment and an employee's privacy and human rights.
- [BRIAN] Random alcohol testing- an employer must establish that its workplace is: (i) dangerous; and (ii) an employer “must provide evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace” (para 31) Irving provides little guidance with respect to the degree of seriousness of a drug or alcohol problem in the workplace that is required to justify random testing. Irving involved "only" eight documented incidents of alcohol consumption or impairment in the workplace over a period of fifteen years – held to be insufficient. The deterrence value of random testing was not given real consideration.
- [BRIAN]
- [SHAUN]
- [SHAUN] A number of post-Irving decisions demonstrate that decision-makers are willing to accept proportionate drug and alcohol testing policies. In these decisions, the employers successfully led concrete evidence of a general workplace drug or alcohol problem, which justified their need to conduct random testing to address the safety hazards. In Bombardier Transportation and Teamsters Canada Rail Conference, Division 660, Re[vi], an arbitrator partially allowed the union’s grievance concerning Bombardier’s drug testing policies. The arbitrator upheld a provision requiring employees to take a drug test when initially moving to a safety sensitive position, but not when moving between safety sensitive positions. However, the arbitrator invalidated a provision which deemed an employee with a positive drug test to be automatically unqualified to perform their job, finding that policies governing disciplinary actions should allow for a range of outcomes that depend on the circumstances of the incident. In the Suncor Energy Inc. v. Unifor Local 707A (Suncor Energy), the majority of the arbitration panel found that Suncor’s random testing standard was unreasonable. Suncor adduced evidence that alcohol and drug use was pervasive, that there were pressing safety concerns that outweighed privacy risks, and was under an onerous statutory obligation to ensure a safe workplace. The Grievance was allowed, as the panel determined that the policy was unreasonable, lacked clarity, contained inconsistencies, and that the proposed urinalysis would not detect impairment and not just “recent use.” Panel found that the employer’s business interest was not sufficient to over-ride employee privacy rights. In Teck Coal Limited v. United Steelworkers, Local 9346[iii], the BC Labour Relations Board upheld an arbitrator’s decision to dismiss the union’s grievance regarding Teck’s random drug and alcohol testing after concluding that the interest of safety outweighed the employees’ privacy concerns. Notably, Teck had established a significant risk of industrial accidents at its workplace, even though it did not have a history of accidents caused by impairment. The arbitrator found that it was preferable to address grievances brought by employees on a case-by-case basis rather than striking down the policy altogether. In Mechanical Contractors Association Sarnia v. UA, Local 663[v], the Ontario Superior Court of Justice upheld an arbitrator’s decision to allow a grievance brought by a union against MCAS, invalidating its mandatory pre-access alcohol and drug testing. The arbitrator found that the worksite was safety-sensitive; however, there was no evidence of any alcohol or drug problem or even of any safety incidents at the worksite. As such, MCAS did not prove that its policy was reasonably necessary. In Alberta, an arbitrator allowed a union’s grievance respecting Teck’s mandatory universal drug and alcohol testing program in Teck Coal Limited and UMWA, Local 1656 (Drug and Alcohol Policy), Reiv. The arbitrator concluded that Teck had not established an enhanced safety risk at its mining operation in Alberta. In support of this finding, she noted that positive alcohol and drug test results were very rare at the workplace, and there was an absence of evidence of any link between a workplace incident and a “human factor” such as drug or alcohol use.
- [SHAUN] Some decision-makers have set a high evidentiary standard of proof on employers and have required employers to prove a specific drug or alcohol problem in a specific bargaining unit, rather than in the workplace as a whole. For example, in Agrium Vanscoy Potash Operations and United Steelworkers Local 7552, Re[vii], the arbitrator allowed the union’s grievance respecting Agrium’s pre-access drug testing policy at a mine site. While Agrium had provided evidence of drugs and drug-contaminated paraphernalia being discovered at the mine, the arbitrator found that Agrium had not provided hard evidence of a problem with drug abuse in the specific bargaining unit bringing the grievance. However, these decisions occurred before Justice Nixon's judgment in Suncor Energy, which held that employers did not need to meet this high evidentiary standard. Agrium Vanscoy Potash Operations and USW, Local 7552 (16-10), Re, 2015 CarswellSask 1
- [THOMAS]
- [THOMAS] Overview of current status of Suncor’s random testing challenge. Applying Irving – how much “evidence of problem” is enough? I will highlight the evidence Suncor introduced at the hearing and how this was addressed by the Arbitrator. I will also use this to flag the problems with percentages. The practical problem of arbitral deference and thoughts on mitigation Urine versus oral swab drug testing – Why Suncor chose urine testing.
- [DAMIAN]
- [DAMIAN]
- [DAMIAN]
- [DAMIAN] Decision-makers will be more likely to uphold drug and alcohol testing policies that are tailored to address legitimate workplace safety hazards which can be demonstrated with concrete evidence of workplace drug or alcohol problems. In the absence of evidence of a workplace drug or alcohol problem, an employer's random drug and alcohol testing policy will likely be unenforceable. Based on Suncor Energy, Irving and the relevant arbitration rulings post-Irving, an employer that wants to implement random drug and alcohol testing will need to lead evidence of a general workplace problem with drugs or alcohol, as well as evidence of the inherent dangers in its workplace if such problem is not addressed. Although unions have initially attempted to increase the burden on employers to demonstrate specific evidence of drug and alcohol abuse within the specific bargaining unit of the union bringing the grievance, it appears unlikely (based on Suncor Energy) that this argument will prove successful in the long run. The union in Suncor Energy immediately indicated its intention to appeal, so the ratification and refinement of the Irving tests will continue at the appellate court level.