Thursday, October 18, 2012

CEP wins Suncor drug-testing injunction

There have been some developments in the random drug-testing dispute between CPE and Suncor. Last Friday, CEP got an injunction at the Court of Queen’s Bench to delay implementation of random drug testing of employees until the matter was heard by an arbitrator. On Wednesday, Suncor was before the Court of Appeal, trying to get the QB injunction overturned. 

I’ve had a fair number of questions about this dispute (basically: “what is the law?”). In random workplace drug-testing, there are two principles in conflict: workplace safety and employee privacy. Suncor’s argument on Wednesday continued to focus on safety:
“Every day that passes, the risk increases,” said Suncor lawyer Tom Wakeling. “The Suncor workplace is inherently a dangerous space. The consequences of mistakes in this hazardous environment may include catastrophes.” Wakeling said an injury or death in the absence of the program could cause irreparable harm to Suncor, which he said should trump privacy matters and other concerns the workers have.
Sometimes the safety argument justifies the violation of worker privacy that drug testing entails. For example, if a worker appears impaired on the job, then testing that worker might well be justified. But it is not always this clear.

For example, many employers want to drug test workers whenever there is an injury. If the injury was caused by a mechanical malfunction (e.g., a chain breaks) then testing wouldn’t be appropriate as impairment was not the cause of the injury. On the other hand, if the injury was caused by an error in worker judgment, then post-incident testing might well be warranted to rule out impairment as a cause.

CEP’s argument is that random testing is an unjustifiable violation of worker privacy. For example, there is no probable cause for random testing. If a cop wants to look in your trunk, she needs probable cause. Under Suncor’s random testing policy, no probable cause is needed. It seems strange to argue that a company ought to have greater search-and-seizure powers than the police.

The testing itself (as evidenced by two affidavits) is demeaning: basically you get to strip off your outer work clothes (which means you can be standing there in your undies) so you’re not hiding any clean urine on you and someone watches you pee into a tamper-proof toilet (there is a half-height screen). Among the stories I heard this week (not necessarily all from Suncor) include a menstruating woman’s experience with pee-testing and the story of a fellow whom, for religious reasons, had never been naked in the presence of another guy and was forced to drop trow and take a leak. What these stories tell us is that a pee-test can be very invasive and psychologically damaging. Given that there is no evidence random-drug testing reduces injury rates, can such an invasion of privacy really be justified?

Further, the Suncor policy is overly broad because it does not distinguish between drug-related injury and safety issues among its employees and its contractors. CEP represents the employees, most of whom are long-term (sometimes even second-generation) Suncor employees who live in Fort McMurray and (the union asserts) don’t have any unusual drug or alcohol issues. The problematic workforce appear to be contractor employees (transient workers who live in camps). Suncor’s approach treats all of the employees as if they are equally at risk of drug-related incidents.

An interesting implication of this assertion is that the energy and construction industries themselves are partly to blame for any drug-fueled injuries. Companies have chosen to rapidly expand their workforce and hire transient workers. They then pay them big money (which they nothing to spend it on), work them long hours (12-hours shifts) for weeks at a time and house them in isolated work camps. It is not surprising that many of these workers will use mind-altering substances, like pot. The companies’ response has been to test and discipline for dope. Consequently, workers move on from dope to other drugs that are harder to test for—like meth, cocaine and crack.

Finally, the consequences of a false positive (which is more common than you’d think) can be devastating. Even workers who are cleared in the end, wind up stigmatized by the false positive. The arguments and outcome of the arbitration ought to be quite interesting.

-- Bob Barnetson

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