Alberta's top court puts random workplace drug and alcohol testing on hold

January 2, 2013

The Alberta Court of Appeal has once again weighed in on the controversial issue of random drug and alcohol testing, in a decision that balanced employee privacy rights against workplace health and safety. In Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., the majority upheld an injunction prohibiting Suncor from imposing a new policy of random drug and alcohol testing on some 2,890 union members in “safety-sensitive” or “specified” positions. 

In reaching its decision, the Court observed that the non-consensual taking of bodily fluids was a “substantial affront to an individual’s privacy rights” and that the new policy cast a wide net, in that it captured employees whose work may not involve a real risk of accident. The Court noted that Suncor had experienced “only” seven fatalities at its workplace in the oil sands over the twelve-year period from 2000 to 2012, with “just” three of those killed having been under the influence of drugs and/or alcohol at the time of their deaths.   

Finally, the Court held that the evidence failed to demonstrate that the new policy would have any immediate effect on accident prevention, or that it would do so more effectively than the current policy, which was narrowly tailored to permit testing only where evidence of drug or alcohol abuse is present. Accordingly, the injunction against Suncor has been upheld until the grievance arbitration evaluating the merits of the new policy is decided.  We will continue to monitor this case as it develops.

In related news, the Supreme Court of Canada is expected to provide guidance on the issue of random alcohol testing in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited. The case was heard on December 7, 2012 and a decision is expected in the New Year.

Our Views:

This case serves to remind employers that while the law on drug and alcohol testing in the workplace continues to evolve, any policy sought to be implemented must be limited to the purposes and circumstances permitted by existing case law, and carefully balanced against the privacy and human rights of its employees.

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Gary T. Clarke
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