Canadian Safety Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2019 News | January 2019 | CSR there is a reasonable suspicion of drug use, Kaardal says. The right of the company to test and the rules governing the testing should be stated clearly in its drug and alcohol policy. The right to conduct random testing, however, is more contro- versial. Random testing is con- sidered to be a gross and severe invasion of an employee's privacy rights and violation of human rights legislation, Kaardal says. One of the most important cases to deal with random test- ing was that of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper. When the Saint John, N.B.-based company introduced random alcohol testing for work- ers in safety-sensitive jobs at a paper mill, the union grieved the policy. The case marked the first time the Supreme Court of Canada had dealt with the question of random drug and alcohol test- ing in a unionized workplace. Its ruling, in 2013, set the standard for random testing in Canada. The Supreme Court of Canada, agreeing with the arbitration panel, decided the employer had an obligation not only to show the job was safety sensitive but, more importantly, to show a gen- eral problem of drug or alcohol abuse existed in the workplace. "The decision set a very high bar. What they said is: Does the employer have a real, pressing requirement for drug testing?" Kaardal says. "It's not enough to say this job is dangerous. To justify random testing, you need to show evidence there's been a huge increase in unsafe op- eration. You need to show real evidence that says, it's because there's a drug culture in this workplace or on that job." The Irving case has provided a reference for subsequent legal cases about random drug test- ing in the workplace. These more recent cases show how difficult the debate remains. Results often rest on a balancing of the privacy rights of employees versus the safety of the workplace. "An employer has a general duty under most provincial oc- cupational health and safety leg- islation to provide a safe work- place and have policies that allow it to do that," Kaardal says. "Em- ployers argue that every time. The judge has said yes, but we have to balance that against the privacy interest." In 2012, Suncor Energy in Al- berta introduced a random drug and alcohol testing policy for all employees in safety-sensitive po- sitions working in the oil sands. The company justified the policy by pointing to a "general problem of substance abuse." The union, Unifor Local 707A, filed a grievance on the grounds that the policy was an invasion of the workers' privacy and won an injunction that prevented Suncor from going ahead with random testing. The arbitration board concluded Suncor's test- ing policy was unreasonable and the harm to the privacy rights of the workers caused by the ran- dom testing policy outweighed the safety benefit to the employer. The arbitration decision was then overturned on appeal on the grounds the arbitration panel had confined their discus- sion to union members and had dismissed Suncor's claims of a substance abuse problem among employees as a whole. The case was sent back to a fresh arbitra- tion panel, but recently the par- ties reached a settlement. The Toronto Transit Com- mission (TTC) began randomly testing employees for drug and alcohol use in May 2017 after the Ontario Superior Court dis- missed an application by the union, Amalgamated Transit Union Local 113, for an injunc- tion. As justification for allow- ing testing to continue, the judge stated the TTC's workplace was essentially the entire city of To- ronto and thus there was a wider public safety concern which outweighed workers' privacy in- terests. The union went back to arbitration to try to overturn the testing policy. In early 2018, an arbitrator ruled against Vancouver-based Teck Coal, which in 2012 had implemented a mandatory ran- dom drug and alcohol testing program at its mining sites. The arbitrator agreed with the union, the United Steelworkers, and concluded the employer's use of random testing to be unreason- able in a balancing of privacy rights and safety. In these cases, all involving unionized workplaces, the em- ployers would have had the right to conduct random testing if it had been agreed to as part of a negotiated collective agreement with the union. Testing would then have been voluntary. "Where there is no drug-test- ing policy agreed to under the collective agreement, the issue then is: Does the employer have a right, because of their duty to have a safe workplace, to put in random drug testing? So far, the indication is no, unless they meet the requirements of the Ir- ving case, which are very hard to meet," Kaardal says. Updating policies Every company with safety-sen- sitive jobs should have a clearly written drug and alcohol policy. It should outline the employer's rights in relation to a cannabis testing program. The Tolko In- dustries case shows how employ- ers can point to a worker's breach of their drug and alcohol policy, rather than evidence of impair- ment, to justify discipline follow- ing a positive drug test. Before revising a drug and al- cohol policy, an employer should get legal advice, says Jan Chappel, senior technical specialist at the Hamilton, Ont.-based Canadian Centre for Occupational Health and Safety. The legal side of test- ing is very complicated. "It involves human rights com- missions, union contracts, occu- pational law, privacy, safety, la- bour standards, a whole bunch of factors involved in being allowed to test in the first place," she says. Moreover, where a worker is dependent on cannabis, a test- ing policy may be considered discriminatory on the basis of disabilities and thus a violation of human rights legislation, she adds. Its use should be limited to safety-sensitive positions. All aspects of a policy deal- ing with impairment and drug testing should be discussed and agreed on between management and workers or their represent- ing union. Policies should clearly set out procedures the company will follow: When testing will occur, who will be tested and how. With no legal definition of im- pairment, the company should use the drug policy to state what it considers to be impairment and how impairment will be identi- fied. What THC level is consid- ered evidence of inability to per- form a job? What physical signs will managers be trained to con- sider symptoms of impairment? "There will generally be a su- pervisor who has to make an evaluation of the individual at that point. We use what we call the 'fit to work' model. Does the person have the ability to do their job or task safely on that day, at that hour? Whether it's driv- ing, operating machinery, using sharp objects, making critical decisions, they need to make an assessment of whether the per- son is able to do that at that time," Chappel says. The employer should also state what actions, including dis- cipline, will be taken when the test results come back and how the company will ensure worker confidentiality. It should also outline return-to-work require- ments for workers who tested positive and cover accommoda- tion policies for workers with an addiction. Additionally, the policy should tell workers how to use the work- place reporting process should they believe a co-worker may be impaired. The education and training the company intends to provide to workers and manag- ers should also be outlined. While there are still many is- sues around cannabis testing to sort out and there will likely be a rise in the number of legal chal- lenges, some to do with the va- lidity of testing, Kaardal thinks the controversy around cannabis testing will settle out. "With respect to the work- place and safety, we have gen- eral impairment factors to look at. And arbitrators are going to say, 'We're concerned about the safety of the workplace and, giv- en the evidence of those two wit- nesses that the person seemed impaired, it was appropriate to ask the worker to leave the work- place.'" Linda Johnson is a freelance journal- ist based in Toronto. Balancing privacy of employees with workplace safety A joint decision < pg. 5

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