Two high profile cases have set the tone for random drug testing in Canada. In New Brunswick, Irving Pulp and Paper wanted employees at its mill operations to undergo random alcohol testing. The case reached the Supreme Court of Canada who struck down the practice in a 6-3 decision in June of 2013. It opined as follows:
“The dangerousness of a workplace—whether described as dangerous, inherently dangerous or highly safety sensitive—is, while clearly and highly relevant, only the beginning of the inquiry. It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.”
In Alberta, Suncor Energy is trying to bring in a random drug and alcohol-testing program for employees and contractors at its oil sands operations in Fort McMurray. A majority of an Arbitration Panel has ruled on March 26, 2014 that the random drug and alcohol testing of all employees at a Suncor site violates the fundamental rights of workers to privacy, respect, and dignity in the workplace and cannot be justified in the circumstances. The ruling, released today, resulted from a grievance filed on behalf of Union members at the Suncor oil sands operations. Suncor said it’s appealing the decision.
The Canadian Human Rights Commission, which is appointed by Parliament, says in a policy paper on alcohol and drug testing that, “drug and alcohol testing are prima facie discriminatory.” Alcohol or drug dependence, whether past or current, is considered a disability. Canadian law prohibits discrimination on the basis of disability. The Commission adds that “discrimination based on the actual or perceived possibility that an individual may develop a drug or alcohol dependency in the future” is also prohibited.
I understand the limitation around random drug and alcohol testing. Drug tests cannot measure whether a person is “under the influence” at the time of the test. Rather they only detect past drug use and not “whether that person is impaired at that moment, or is likely to be impaired while on the job”. In a former role I was an employer ultimately responsible for the health and well-being of hundreds of employees in safety sensitive jobs. The current decisions make me wonder who the law truly protects and would random drug testing have had an influence on people like Daniel Tschetter before he got behind the wheel of a concrete mixer – drunk and plowed into and killed a family of five? Suncor has had 3 deaths over the last 7 years involving drugs and alcohol. While drug testing has its drawbacks, if you don’t do drugs and you don’t show up to work drunk, you will not fail a drug test.