OPINION: Workers winning drug testing fight

George Mathewson

Should Canadian companies be able to randomly test their workers for drugs and alcohol?

Because of a workplace incident in Sarnia the answer to that question has become a little clearer.

The Chemical Valley has long been a key battleground in a tense legal fight that pits a company’s requirement to provide a safe workplace against an employee’s right to personal privacy.

Employers have lost a string of decisions dating back to 1995 when a board found Imperial Oil had discriminated against a process operator at its Sarnia refinery by requiring him to undergo random alcohol testing.

The latest decision, known in legal circles as the ‘Sarnia Review,” came in late November when the Ontario Superior Court of Justice upheld an arbitrator’s ruling.

The case involves the Plumbers and Pipefitters Union, Local 663, whose members balked in 2012 after Suncor Energy issued a new directive. Suncor wanted workers coming onto its Sarnia worksite to be tested for alcohol and drugs, and the Mechanical Contractors Association of Sarnia agreed.

The union grieved and a hearing was held in Toronto.

In an 85-page decision, the arbitrator concluded Suncor’s policy violated both a provincial collective agreement and the Ontario Human Rights Code.

The company’s policy cast “too broad a net” that was bound to capture innocent workers, the arbitrator said. He also ordered Suncor and other companies covered by the agreement to cease pre-access alcohol and drug testing.

For Suncor, the Sarnia Review was a second straight setback. The energy giant had also tried to randomly test thousands of union workers in northern Alberta.

In that case, an arbitration panel sided last May with the union Unifor, which had argued there is no evidence of an out-of-control drinking or drug culture at Suncor to justify such a move.

The company, disappointed, applied for judicial review, and a decision is expected this year. The outcome of that is seen as one of the last hopes for the courts to allow random testing at Canadian worksites, according to analyst Ryan Smith of the law firm Miller Thomson.

The Sarnia Review poses a problem for all employers seeking to introduce random alcohol and drug testing at its worksites, he wrote, and it’s especially troubling for Suncor.

If the company can’t randomly drug-test the young bucks working in the Wild West oil sands, it probably won’t be allowed to do it anywhere else.

“The Sarnia Review is the most recent in a string of employer defeats with regard to the enforceability of alcohol and drug testing policies in Canada,” Smith said.