Canadian HR Reporter

CANADIAN HR REPORTER July 11, 2016 EMPLOYMENT LAW 5 Jeff rey Smith Legal VieW Suncor's drug and alcohol policy given another chance by appeal court e random drug and alcohol testing at Suncor has been given a second chance by an Alberta court after an arbitration board previously struck it down. Suncor has oilsands extraction operations in two locations north of Fort McMurray, Alta. As of July 2013, there were more than 3,300 unionized workers, almost 3,000 non-represented workers and up to 3,400 contractor employees. Much of the activity in Sun- cor's oilsands operations involved heavy equipment and dangerous activities, so safety was a con- cern. e company had several safety measures in place to ensure awareness and preparedness for safety hazards, such as employee and supervisor training, an em- ployee assistance program, a treatment program for employees with addictions, drug and alcohol detection measures, and a rapid site access program for contrac- tors' employees. Suncor introduced pre-em- ployment drug and alcohol testing for all new employees in 1999 to help ensure safety and productiv- ity wouldn't be hindered by intoxi- cated workers. Over the next few years, the company introduced further measures to guard against work- place impairment, including alco- hol and drug testing of employees via urinalysis following an inci- dent at the workplace or where there were reasonable grounds to suspect impairment, along with those completing rehabilitation and returning to work after drug- or alcohol-related issues. In 2012, Suncor told the union it was introducing random drug and alcohol testing for employees working in safety-sensitive posi- tions, which described about 82 per cent of unionized employees. e new policy also gave super- visors discretion to allow employ- ees 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, and an arbitration board pointed out that although Suncor claimed the danger inherent with the slightest inattention or mis- take at its oilsands operations, its policy was not zero tolerance and supervisors had leeway to make a judgment call on whether em- ployees were fi t to work. Howev- er, "in a random testing regime, a positive test will be the only result on which signifi cant discipline — or even dismissal — may rest," said the board. e board looked to the Su- preme Court of Canada's deter- mination in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. that said ran- dom testing is only warranted if the employer establishes there is a "general problem" with drug or alcohol use in the workplace. Sun- cor presented reports showing is- sues with positive tests, evidence of drug and alcohol use by workers and the three deaths onsite, and the company also argued any in- stances were unacceptable in such a safety-sensitive environment. However, the board found the evidence showed the policy and testing regime already 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, while the workforce increased. Also, Suncor didn't present evi- dence that showed the incidents for which the testing was done had proven to be the result of drug or alcohol use. e board also found most of the incidents took place in the work camps, which had mostly contractor employees on site. As it turned out, only slightly more than one-half of one per cent of security incidents specifically referred to a unionized Suncor employee. Additionally, all three fatalities Suncor mentioned were contrac- tor employees. Without evidence of signifi cant use by unionized Suncor employees, it was unfair to paint them with the same brush by forcing them into random test- ing and the privacy violation it in- volved, said the board. The majority of the arbitra- tion board found Suncor did not prove drug and alcohol use was connected to the accident and near-miss history of its oilsands operations. Without this correla- tion, and the fact urinalysis does not demonstrate current impair- ment, the board found Suncor's random testing policy was an un- reasonable exercise of manage- ment rights. Board didn't consider all the evidence: Court Suncor appealed the decision to the Alberta Court of Queen's Bench, which found the arbitra- tion was too strict in using the Supreme Court of Canada's Irving decision to place limitations on establishing a workplace problem. While the Supreme Court al- lowed that random testing "might be justifi able if the employer could adduce evidence of a general problem with alcohol and drugs in the workplace," the board said there needed to be evidence of a "significant" or "serious" prob- lem. e court found this was "an unwarranted elevation" of this requirement. e court also found the board incorrectly determined that a causal connection between EVIDENCE > pg. 6 Most of the incidents took place in the work camps, which had mostly contractor employees.

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