Dude, Where’s Your Justification? Random Drug and Alcohol Testing

In Canada, drug and alcohol testing in the workplace has long been treated as a significant invasion of employee privacy – which is not surprising when you consider the elements of bodily intrusion and public embarrassment associated with it. Especially when you consider that only in specific circumstances does random drug and alcohol testing lead to a safer workplace. Mostly, it just leads to public shaming and employment issues without fixing problems that may (or may not) have existed.

In keeping with this longstanding tradition, the arbitrator in United Mine Workers of America, Local 1656 v. Tech Coal Limited struck down a mining company’s random drug and alcohol testing program. The arbitrator ruled that the significant intrusion on employee privacy presented by such testing was not warranted because there was not enough evidence of a problem with drug or alcohol use at the mine in question.

Teck Coal Limited, an international coal mining company with six mines in Canada, introduced a mandatory random drug and alcohol testing program at a mine in Alberta in May of 2012. The goal of the program was for “employees to stop the harmful use of illegal drugs, alcohol, and medications before they have an incident” and to have a “workplace free from these risks”. Worthy goals, particularly in light of the admission of all involved that the affected employees occupied safety sensitive positions within a safety sensitive work environment.

The disconnect in this case arose between the enactment of measures to prevent incidents and the need for these measures in the first place.

On May 14, 2012, the union filed a policy grievance challenging the random testing program. The grievance led to a gargantuan hearing that involved 21 days of testimony, 16 witnesses and 74 exhibits.

Ultimately, Arbitrator Janet Alexander-Smith relied on existing Supreme Court of Canada case law in requiring that a balancing of interests approach be used where a unilaterally imposed rule, such as the random drug and alcohol testing rule in question, affects employee privacy.

Based on this approach, Arbitrator Alexander-Smith set out three considerations in assessing whether an employer has reasonable cause to unilaterally impose universal mandatory testing:

1. The nature of the work environment;
2. Evidence of enhanced safety risks in that work environment, such as evidence of a workplace problem with drugs and alcohol; and
3. The reasonableness of the measure imposed in respect to the problem, including its proportionality in the context of the conflicting workplace interests.

In a similar case where testing was found to be warranted, there was evidence of a pervasive problem with alcohol in the workplace. This evidence included positive test results and evidence of use of alcohol in the workplace, including recent use, based on testimony from witnesses of both the union and the employer, who reported:

• Finding empty liquor bottles at work
• Seeing other employees drinking on the job or storing alcohol at work
• Smelling alcohol on other employees’ breath.

In this case, the employer did not provide enough evidence of a drug and alcohol problem at the mine. The evidence was needed to establish that a workplace problem existed prior to the introduction of the random testing, and so justified the implementation of the policy.

This is not to say that random drug and alcohol testing will never be warranted. Further, even where random testing is justified and allowed, employers have to consider any human rights accommodation issues that might arise from a positive result. Are there addiction issues? What steps is the employer required to take?

So, if your employer tries to make you pee in a cup, remember that before an employer makes such an extraordinary incursion into the privacy rights of its employees, there either ought to be evidence of a problem or it ought to be expressly and clearly negotiated in the collective agreement.