Fri 28th June 2019 by Wilson McCutchan
Many employees, especially those who occupy “safety sensitive” positions (where employees have their own safety and others’ in their hands), will be asked to submit to a drug and alcohol test of one form or another, either as a pre-requisite for obtaining employment, over the course of employment, or both. The various types of tests include: pre-employment testing; reasonable cause/reasonable suspicion testing; post-incident testing; and random testing.
Pre-employment, reasonable cause, and post-incident testing have largely been accepted by the courts in Canada as acceptable forms of testing. Random testing, meanwhile, has been held allowable in narrowly-defined circumstances. It is important that an employee faced with a random drug and alcohol test understand his or her rights.
The Alberta Court of Appeal in Unifor, Local 707A v Suncor Energy Inc., 2018 ABCA 75, recently noted that “the bulk of the current authority (both case law and arbitration) holds that it is unreasonable to randomly drug test even those employees in safety sensitive positions in a dangerous workplace.” It went on to note the balancing act a court (or other decision maker) must perform, between preserving public safety concerns and respecting and protecting employee privacy. More frequently, courts and arbitrators have concluded that random policies’ offence against employee privacy and dignity outweighs the often-uncertain benefit the policies might have in increasing safety.
The developing principle is that random drug testing – where an employee is selected by lot without any consideration as to whether he or she has ever been involved in an incident or ever demonstrated any signs of impairment at work – is, as distinct from other types of tests, justified only where an employer can show that there is a general or demonstrable problem with drug and/or alcohol abuse in its workplace. Whether a general problem exists will be for the court to determine on a case by case basis. The case law provides little guidance on what precise factors will be considered in determining whether a general problem exists. In a dissenting opinion in Unifor, Local 707A v Suncor Energy Inc., Justice Slatter noted that it is not incumbent on the employer to show that all or even a majority of employees are using substances in order to establish the existence of a general substance abuse problem. One fact that could potentially go toward establishing a general problem is a flurry of workplace incidents followed by positive tests.
Further instruction on what might constitute a general problem with substance abuse in the workplace is provided by the Supreme Court of Canada in CEP, Local 30 v. Irving,  2 S.C.R. The labour arbitrator had determined that 8 documented alcohol-related incidents over a 15-year period did not constitute a workplace problem sufficient to justify random testing. The Supreme Court restored the arbitrator’s decision and held that the random testing policy was unjustified.
Therefore, if you are an employee who has been asked to submit to a random drug and alcohol test, please be aware that the request may itself be unjustified and there may be legal grounds on which to refuse. If you are uncertain and want to have a professional review your situation or you believe the request to be unjustified, book a consultation with one of our lawyers right away and we will be happy to review your matter with you.