Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER April 21, 2014 April 21, 2014 EMPLOYMENT LAW EMPLOYMENT LAW 5 Random drug, alcohol testing struck down at Suncor Company failed to prove there was a problem with intoxicants at oil sands operations in northern Alberta Energy company Suncor is the latest em- ployer to have random drug and alcohol testing shut down after an arbitrator fol- lowed the Supreme Court of Canada's de- termination that the cons of such testing outweighed the pros without proof of a signifi cant problem. Suncor has oil sands extraction operations in two locations in northern Alberta: a base plant in the Regional Municipality of Wood Buff alo, about 30 km north of Fort McMurray, and a smaller operation at McKay River and Firebag, about 120 km north of Fort McMurray. As of July 2013, there were more than 3,300 unionized work- ers, almost 3,000 non-represented workers and up to 3,400 contrac- tor employees. Much of the activity in Sun- cor's oil sands operations involved heavy equipment and dangerous activities, so safety was a constant concern — something aided by employees working with a clear head and maximum abilities. To that end, in 1999, the company introduced pre-employment drug and alcohol testing for all new hires. In 2003, Suncor introduced a policy that allowed for alcohol and drug testing of employees via urinalysis if there was an incident at the workplace, if there were reasonable grounds to suspect impairment or if someone was completing rehabilitation and returning to work after drug- or alcohol-related issues. After the union grieved the pol- icy, several changes were made, including the adoption of a "fi t for duty" standard for employees — that is, "being physically and men- tally fi t to safely perform assigned duties without excessive risk or harm to yourself or others." e company followed this up with a pre-access standard for contractors with access to Suncor sites and, in 2008, the use of sniff er dogs to root out drugs in Suncor- owned accommodation facilities. In 2009, Suncor implemented an alcohol-free lodge policy. In 2012, the company informed the union it was introducing ran- dom drug and alcohol testing for employees working in safety-sen- sitive positions, which described about 82 per cent of union- ized employees in the oil sands operations. e new policy also gave Sun- cor supervisors discretion to al- low employees to return to work if they tested positive with a 0.02 to 0.039 per cent blood alcohol concentration. The union grieved the new policy, arguing it was "unjustifi - able, unreasonable and violates employees' privacy rights, hu- man dignity, and human rights. e policy sanctions unreason- able and unjustifi able searches of employees' persons." e union provided accounts given by employees who had un- dergone testing under Suncor's previous policy, who described the testing process as stressful, humiliating and disrespectful. Couldn't aff ord any bad judgment: Company Suncor countered that its oil sands operations included complex mining, industrial and upgrad- ing equipment and its operations were "complex and hazardous" with "a number of risks to people, property and the environment on-site." Any inattention or mistakes made by employees could lead to "catastrophic consequences" in a workplace featuring high pres- sures and temperatures, as well as heavy equipment, which could re- sult in an explosion. Any impair- ment of an employee could have extremely serious repercussions, said Suncor. e company described three fatalities since 2009 in which it was known drugs or alcohol had played a role: •A contractor employee who consumed alcohol and cocaine, stole a van and then climbed up a structure and jumped off . •A contractor employee who was killed by the rim of a truck tire after the tire defl ated while being repaired. •A contract employee in camp who choked on his own vomit after consuming a large amount of alcohol. Suncor was also concerned about the number of positive tests under the previous policy imple- mented in 2003 — over nine years, 224 (216 unionized employees) tested positive for various sub- stances, including marijuana, co- caine, heroin and opiates. Suncor security has also found devices used to defeat drug tests and in- dications of drug traffi cking at its work camps. e oil company noted there had been a decrease in positive tests since the changes made to the policy in 2009, but the number was still unacceptable to the com- pany, given its safety concerns. e union characterized most of Suncor's evidence justifying random drug and alcohol testing as "unparticularized evidence, anecdotal evidence, broad-based inferential reasoning and unsup- ported presumptions." The arbitration board noted that employers have the right to review and alter a policy, but un- less they have union agreement, the policy must be consistent with the collective agreement, reasonable, clear and unequivo- cal, brought to the attention of employees before implementa- tion, and consistently enforced. The board also noted drug testing by urinalysis was not as eff ective as breathalyzer in de- termining current impairment, as the Supreme Court of Canada determined in its 2013 decision Communications, Energy and Pa- perworkers Union of Canada, Lo- cal 30 v. Irving Pulp & Paper Ltd. is created a problem in that the advantage of random testing in a safety-sensitive situation was to identify and remove an impaired individual from the workplace. Using urinalysis raised questions over whether it was worth it con- sidering the personal harm caused to employees, particularly since it was more intrusive than other methods such as breath testing, said the board. And though Suncor claimed there was danger inherent with the slightest inattention or mis- take at its oil sands operations, its policy was not zero tolerance and supervisors had leeway to make a judgment call on whether an em- ployee who tested positive with a small amount was fi t to work, said the board. However, "in a random testing regime, a positive test will be the only result on which sig- nifi cant discipline — or even dis- missal — may rest." e board looked to the Su- preme Court of Canada's deter- mination in Irving that random testing is only warranted if the employer establishes there is a "general problem" with drug or alcohol use in the workplace. Suncor presented reports showing issues with positive tests, evidence of drug and alcohol use by workers and the three deaths on-site, and the company also argued any instances were unac- ceptable in such a safety-sensitive environment. However, the evidence showed the policy and testing regime al- ready in place — post-incident and return-to-work after rehab testing — showed a decrease in positive tests, from 8.6 per cent in 2009 to 3.5 per cent in 2012, found the board. is decrease was also at the same time Suncor's work- force increased substantially, the board pointed out. Also, Suncor didn't present evi- dence that showed the incidents for which the testing was done had been proven to be the result of drug or alcohol use. Company's fi gures didn't diff erentiate between employees, contractors Most of the incidents took place in the work camps, found the board, which had mostly contractor em- ployees on-site, as most unionized employees lived nearby. And only slightly more than one-half of one per cent of security incidents spe- cifi cally referred to a unionized Suncor employee. Additionally, all three fatalities Suncor mentioned were contrac- tor employees. Without evidence of signifi cant use by unionized employees, it was unfair to paint them with the same brush by forc- ing them into random testing and the privacy violation it involved, said the board. " e evidence does not dem- onstrate a culture at the oil sands operations where the consump- tion of alcohol is so pervasive as to be accepted by employees, where employees go together to drink openly and where such activity is either condoned or encouraged by management's practices or inac- tion," said the board. Suncor did not prove drug and alcohol use was connected to the accident and near-miss history of its oil sands operations, found the board. Without this correlation, and the fact urinalysis does not demonstrate current impairment, Suncor's random testing policy was an unreasonable exercise of Suncor's management rights, said the board. Suncor said it would appeal the decision. For more information see: • Unifor, Local 707A and Suncor Energy Inc., Oil Sands (March 18, 2014), Tom Hodges – Chair (Alta. Arb.). • Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 (S.C.C.). Jeff rey R. Smith is the editor of Ca- nadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@ thomsonreuters.com or visit www. employmentlawtoday.com for more information. Jeff rey Smith Legal View Over nine years, 224 Suncor employees tested positive for various substances including marijuana, cocaine, heroine and opiates. Credit: Todd Korol (Reuters) A worker walks past a steam-generating facility at oil sands operations near Cold Lake, Alta.

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