Random drug testing in the workplace – what does the Suncor case mean for other employers?

Starting in the first quarter of this year, Suncor Energy Inc. (Suncor) plans to start randomly testing some of its employees for drugs and alcohol at its northern Alberta worksites. What does this mean for other employers?

History of the Suncor saga

The dispute between Suncor and Unifor Local 707A (Union) has a long procedural history stemming back to 2012 when Suncor implemented a random drug and alcohol testing program for people holding "safety-sensitive positions." The testing program prompted the Union to file a grievance, alleging testing infringed on workers' privacy rights and human rights.

An arbitration tribunal allowed the grievance, and found the testing to be an unreasonable exercise of management rights. However, the arbitration decision was overturned by the Alberta Court of Queen's Bench, which found that the tribunal made the following three key errors:

1. The Board applied the wrong legal test to determine whether the threshold concerning the degree of evidence necessary to establish a workplace drug and alcohol problem was met.
2. The Board misapplied the legal test again when it said that "it could only consider evidence demonstrating an alcohol and drug problem within the bargaining unit". The legal test was to be applied to the "workplace" rather than the "bargaining unit" as long as this does not result in an overbroad analysis.
3. The Board "ignored or misunderstood the evidence in a manner that affects its decisions."

The Alberta Court of Queen's Bench directed the matter back to a fresh arbitration panel. The Queen's Bench decision was appealed and on appeal, the Alberta Court of Appeal agreed with the lower court, finding that the decision-making process used by the arbitration tribunal was flawed. The Union sought leave to appeal the Alberta Court of Appeal decision to the Supreme Court of Canada.

Before the Supreme Court of Canada made a decision with respect to the leave application, Suncor attempted to implement random drug testing by advising its employees that it would be introducing a new drug and alcohol testing policy. To prevent Suncor from doing so, the Union applied for and obtained a temporary injunction preventing Suncor from implementing the testing program until the matter was heard by a new arbitration panel, or by way of appeal to the Supreme Court of Canada. Suncor appealed the injunction decision and the Alberta Court of Appeal denied the appeal.

In June 2018, the Supreme Court of Canada held that it would not grant the Union leave to appeal. This meant that, until recently, the issue of Suncor's random drug and alcohol testing policy was to be considered by a fresh arbitration panel, and in the interim, the injunction would remain in force.

On November 29, 2018, Suncor and the Union reached an agreement that random drug testing will commence during Suncor's first quarter of 2019, ending an approximately seven year saga between Suncor and the Union.

Implications of the agreement between Suncor and the Union

Employers should be aware of the judicial history of this matter. The decision by Suncor to implement random drug and alcohol testing in 2019 is not based on a judicial pronouncement that such testing is reasonable and justifiable in the circumstances. Rather, it is based on an agreement between Suncor and the Union.

That being said, the existing concerns with respect to employee privacy rights remain relevant. This agreement between Suncor and the Union does not change an employer's need to weigh safety and employee privacy in deciding whether to conduct random drug testing.

Employers must continue to weigh competing interests

Employers have a responsibility to provide a safe work environment, and employees have an important right to privacy and to the related right of security of the person. As stated by the Supreme Court of Canada in Irving Pulp & Paper Ltd. v CEP, Local 30, the invasion on these rights by random alcohol testing involves a bodily intrusion and the surrender of bodily substances. It involves coercion and there can be an element of public embarrassment. Random testing can also effect a loss of liberty and personal autonomy.

With the recent legalization of cannabis in Canada, random drug testing runs the risk of affecting a greater number of employees, which potentially opens up employers to a greater number of complaints. On the other hand, the legalization of cannabis puts employers at a greater risk that employees may come to work impaired and not fit for duty, which may put the safety of other workers and the public at risk.

Suncor's work sites have many hazards, and has previously experienced fatalities and serious injuries where alcohol or drugs were a factor. Despite these tragedies, Suncor states that it has continued to experience problems with employee use of drugs or alcohol. As such, Suncor and the Union came to an agreement that implementing random drug and alcohol testing would be the best way forward to positively affect safety at the work site.

Random drug or alcohol testing may be justifiable if it represents a proportionate response in light of both legitimate safety concerns and privacy interests. For random drug or alcohol testing to be permissible, the employer must justify doing so by having at least some evidence of a problem with drug or alcohol misuse in the workplace sufficient to justify the intrusion into employee privacy rights.

Takeaway

The implementation of Suncor's random drug and alcohol testing program will likely encourage other employers with safety-sensitive workers to commence similar programs. However, the existing case law remains authoritative, and the recent agreement between Suncor and the Union does not change the state of the law. Employers should conduct a careful and thorough analysis of whether random testing is appropriate at their worksites, including gathering evidence showing a problem with alcohol and drug use.