An Alberta employer’s drug and alcohol testing program has been halted by two courts until the union’s grievance against it can be heard.
Earlier this year, Suncor Energy announced it would be implementing a program that would involve random drug and alcohol testing of employees in “safety sensitive” or “specified” positions at its oilsands operation in Fort McMurray, Alta. Employees in those positions would be selected for testing by a computer and half of all eligible employees would be tested each year. Selected employees would be required to provide urine samples.
The union filed a grievance on behalf of the 85 percent of its membership who would be part of the group eligible for testing. The grievance was scheduled to be heard by an arbitrator in December, but Suncor decided it would proceed with the original implementation date of Oct. 15, with the idea that if the union won the grievance, the program would be stopped at that point.
Three days before the testing program’s implementation date, on Oct. 12, the union was granted an injunction by the Alberta Court of Queen’s Bench that prevented Suncor from implementing testing until an arbitration decision was made. The court found drug and alcohol testing violated employees’ privacy, dignity and bodily integrity and it was a serious enough issue to warrant delaying until an arbitrator ruled on the matter.
Suncor appealed to the province’s Court of Appeal to lift the injunction, but the appellate court agreed with the lower court, finding the program was “a significant breach of workers’ rights” and privacy rights due to the involuntary taking of workers’ bodily fluids. The Court of Appeal also found there was no evidence the program would impact safety, it wasn’t limited just to employees in dangerous jobs, and the delay wouldn’t hurt Suncor since the program wasn’t even scheduled to apply to contractors until Jan. 1, 2013.
Of note, one Court of Appeal judge dissented, arguing that the risks of intoxicated workers outweighed any infringement of privacy.
“Privately giving a urine sample to be tested for alcohol or drugs does not begin to equal death or dismemberment, or widowhood or becoming orphaned, by an accident," said the dissenting judge.
© Copyright Canadian HR Reporter, HAB Press. All rights reserved.