As a new year begins, the already bleak outlook for Canadian employer’s trying to enforce random alcohol and drug testing policies in unionized workplaces appears even darker after a recent arbitration decision in Alberta quashed another employer’s policy.
We have written about these decisions and have provided advice for employers in the past, including our most recent article: “Alberta Arbitrators Strike Oil Company’s Random Alcohol and Drug Testing Policy.”
In the latest decision, Teck Coal Ltd. and UMWA, Local 1656 (Drug and Alcohol Policy), Re, 2015 CarswellAlta 2237 (“Teck Coal”), arbitrator Alexander-Smith weighed the evidence of 16 witnesses, including five experts, in determining that the employer did not prove an alcohol and drug problem existed at the workplace that was sufficient to justify the impugned policy. In particular, the arbitrator cited, both, a lack of evidence that alcohol and drug use was connected to safety incidents at the employer’s workplace, and a lack of evidence connecting a decreased safety risk due to the implementation of the impugned policy.
The first important sign of trouble for the employer in the Teck Coal case arose in June 2013, when the Supreme Court of Canada released its decision in CEP Local 30 v Irving Pulp & Paper Ltd, 2013 SCC 34 (“Irving Pulp“), the seminal decision with regard to alcohol and drug testing policies.
The employer in Teck Coal had implemented random alcohol and drug testing policies prior to the release of the decision in Irving Pulp. At arbitration, the employer in Teck Coal characterized Irving Pulp as a standard of review decision that has little or no application to its case. However, arbitrator Alexander-Smith rejected this argument, stating that she was bound to apply the principles set out in Irving Pulp, and, in doing so, assess the reasonableness of the Teck Coal policy using a proportionality assessment approach, in which the imposition of safety measures are weighed against the attendant intrusions on privacy rights (paras 314 and 315).
The Court in Irving Pulp stated that circumstances may exist to justify an employer’s random alcohol and drug testing policy in a unionized setting in Canada, but the subsequent Canadian jurisprudence is making it clear that such circumstances are narrow.
Employers are looking to the results of the long awaited Alberta Court of Queen’s Bench judicial review of Suncor Energy Inc. and Unifor, Local 707A (Random Alcohol and Drug Testing Policy), Re, 242 L.A.C. (4th) 1 (“Suncor”) as a possible case in which an employer’s random alcohol and drug testing policy will be deemed reasonable. The Alberta court’s decision is expected in 2016.
Regardless of the upcoming Suncor judicial review results, employers wanting to implement random alcohol and drug testing policies at a unionized worksite in Canada will need to support the decision with comprehensive evidence of an alcohol and drug problem among the affected bargaining unit employees that is connected to a safety risk in the workplace. Further, the employer implementing the policy should try other methods short of random testing in an attempt to reduce the risk before implementation of the policy, and, if the decision to implement the policy is made, the policy should be applied as narrowly as possible.