An Alberta arbitration panel has upheld the ban on random drug and alcohol testing of employees at a Suncor site outside of Fort McMurray.
In July 2012 Suncor announced it would be randomly testing all its employees at two sites in the area, but the policy was quickly put on hold due to an injunction. Today the arbitration panel, led by chair Tom Hodges, released its decision, finding that the program cannot be justified.
Suncor confirmed to HRM Online that it would be appealing the decision. Spokesperson Sneh Seetal said the company was disappointed and believed it was an “unreasonable outcome”, pointing to Arbitrator David Laird’s statement that he had never seen stronger evidence in support of random drug and alcohol testing,
“The driver behind the inclusion of random testing in our already comprehensive safety program was to make sure our workers go home safely to their loved ones at the end of each day,” Seetal told HRM. “It's about workplace safety. And we have a duty to protect the safety of the public, workers and the environment.”
While the panel agreed that no employee in a safety sensitive role should be working under the influence of drugs or alcohol, it found the Suncor policy was too broad.
Most of Suncor’s evidence of risk was based on trends in its camp accommodations, but the policy applied to employees in other work situations and included full time employees, contract workers and unionized employees.
“In our view, the evidence does not demonstrate a culture at the Oil Sands Operations where the consumption of alcohol is so pervasive as to be accepted by employees, where employees go together to drink openly and where such activity is either condoned or encouraged by management’s practices or inaction,” the panel decision said.
The panel found the proposed testing was too intrusive, and caused employees considerable stress.
“We also have evidence that the rates of positive tests have declined steadily from 2009 to date while workplace reportable injuries have also declined,” the panel found. Suncor also showed lower rates of positive alcohol testing than Irving Pulp and Paper Mill, which had its randomized testing policy overturned by the Supreme Court in June last year.
Last year the Supreme Court decision specified that random testing could hypothetically be possible, but would have to meet stringent “reasonable cause” requirements.
The arbitration panel noted that Suncor’s policy required employees be “fit for duty”, what was a subjective requirement so “for cause” testing could follow an employer suspicion that the employee was not fit for duty.
“A positive result is merely one piece of evidence to add to the mix in a ‘for cause’ testing regime,” The panel decision said. “In random testing, in contrast, there is no precipitating event that prompts the test, or history of past substance abuse to justify the intrusion. The only ‘triggering event’ is the fact of employment; the only evidence of whether an employee is ‘fit for duty’ is the random positive test itself.”
"Random drug testing of workers that have done nothing wrong is a violation of their basic rights," said Unifor Local 707A president Roland Lefort, who represents the workers at the affected sites. "We will work with Suncor to achieve the highest possible levels of workplace safety with education and prevention, not invasive medical procedures."
Alberta’s Drug and Alcohol Risk Reduction Pilot Project (DARRP) released a statement saying the organization was disappointed by the decision.
"This ruling weakens the ability of Alberta industry to manage the substantial risks associated with alcohol and drug use on safety-sensitive worksites," the statement said. "Random testing has been proven to reduce injuries and save lives in other sectors. In the U.S. transportation industry, random testing has cut positive alcohol and drug tests on the job by almost half, dropped the fatality rate from .77 to .51 and reduced fatal accidents involving alcohol by 23 per cent."
Read more: Supreme Court decision on randomized alcohol testing