Suncor Decision: High Standard for Random Drug and Alcohol Testing Policy Confirmed

In June 2013, the Supreme Court of Canada weighed in on the issue of random alcohol testing in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd, 2013 SCC 34 (“Irving”).   Following the Supreme Court’s ruling, the Alberta Arbitration Board (the “Board”) recently issued a decision concerning the random drug and alcohol testing policy of Suncor Energy Inc., Oil Sands (“Suncor”).  The union in this case, Unifor Local 707A, (“Unifor”) represents over 3,000 employees at Suncor’s oil sands operation in Fort McMurray, Alberta.

Unifor filed a grievance against Suncor’s drug and alcohol testing policy introduced in 2012, which permits random testing of all employees occupying “safety sensitive” positions (the “Policy”). Unifor relied on Irving stating that random testing is particularly intrusive (as compared to testing for reasonable cause or following a precipitating event). Further, Unifor argued that Suncor failed to meet the ‘balancing of interests test’ set out in Irving, which requires the expected safety gains from the introduction of random drug testing to be proportionate to the intrusion of the employee’s privacy.

Following the balancing of interests test, the Board found that Suncor’s evidence of 14 positive alcohol tests over a 9- year period in a large workforce did not establish a significant alcohol usage problem or legitimate safety risk, therefore, the random alcohol testing policy was not justified.

With respect to random drug testing, the Board rejected Suncor’s argument that there was an “out of control” drug culture in the workplace justifying random testing. Further, the Board rejected the reasonableness of Suncor’s random drug testing policy because it failed to:

• Identify the current impairment of the employee;
• Provide time limits for review of effectiveness;
• Implement the most accurate and least intrusive testing method (i.e. oral testing instead of urine testing); and,
• Narrowly target the test subjects (i.e. only target new employees for a specific duration).

The Board commented that a reasonable random drug and alcohol testing policy would include principles such as, “a time-limited trial project, measurement of effects and results (including false positives); maintaining respect for the dignity of employees; a dispute resolution mechanism; a clear and unequivocal, “under the influence of alcohol or drugs” prohibition; consistent training and using oral fluid testing.”

Suncor has announced that it intends to seek judicial review of the decision.