Wednesday, March 26, 2014

Suncor's random testing policy gets turned back

An arbitration panel has rejected random alcohol and drug testing by Suncor of workers in safety sensitive positions. This testing would be on top of existing pre-screening and for cause (i.e., reasonable grounds, post-incident and post-rehab) programs as well as an interdiction program with sniffer dogs. 

Approximately 82% of the unionized workforce would be subjected to the random testing. The union grieved on the basis that the program is unjustified, unreasonable and violates workers’ privacy rights, dignity and human rights.

Rather than trying to summarize the 106-page decision, I thought I would just pull out two of the more interest paragraphs that give a flavour of the decision:
[274] Considering all of these factors, and the limitations of the evidence as noted, we cannot conclude that the gains which this Employer would achieve from randomly testing its workforce for alcohol would be sufficient to justify random testing on a balancing of interests approach in view of the evidence which has been offered with respect to the problem in this bargaining unit. 
 [312] As we have discussed, urinalysis does not demonstrate current impairment, It does indicate use, but not the quality, quantity or time or use. Given this evidentiary limitation, evidence of positive tests, without more, does not allow us to conclude that drug use by Suncor employees in the bargaining unit poses a safety risk of such a magnitude that would justify the imposition of random testing for safety sensitive positions. We find that the evidence tendered with respect to drug and alcohol security incidents does not demonstrate a serious drug issue among employees in this bargaining unit. Additionally, although the employer has a sophisticated health and safety system, it did not present this Board with information that would link accident injury and near miss incidents to drug use or abuse. On balance, we do not find random drug testing as proposed by the Employer to be a reasonable policy.
This decision appears broadly consistent with Supreme Court’s recent decision on random alcohol testing (CEP v Irving Pulp & Paper, 2013 SCC 34) which centres on the notion that privacy is a fundamental right and infringement is subject to a balancing of interests proportionality approach.

-- Bob Barnetson

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