Illegal drug use is a dirty little secret in the oilsands. In northern resource towns like Fort McMurray, it’s about four times as prevalent as in Alberta at large. Some surveys suggest as many as 40% of workers have used drugs while employed at key oilsands sites. Statistics like that—and the safety issues involved in operating equipment such as the massive trucks at mine sites—are the reason the industry is watching closely the clash between Suncor Energy and the Communications, Energy and Paperworkers Union over the company’s proposed random drug-and-alcohol testing program.
Suncor introduced a policy last summer whereby workers in “safety-sensitive” positions could be asked to submit a urine sample at any time, something the CEP considered a violation of their privacy and dignity. By the time the testing was to be rolled out, the union obtained an injunction to stop it. In late November, the Alberta Court of Appeal, in a split decision, told Suncor to halt random testing until the results of a labour board arbitration come in. Those hearings started in Calgary in early January, with no ruling as yet. But no one expects that decision to be the final word.
“Whatever the result, one side or the other will likely seek judicial review,” says William Armstrong, partner with employment law boutique Armstrong Mitchell. The loser will then appeal the result of that review, possibly all the way to the Supreme Court of Canada. Which, incidentally, is about to pronounce on a related case—random alcohol testing—also launched by the CEP, against New Brunswick’s Irving Pulp & Paper.
Where does that leave the oilsands industry? Walking a fine line between its attempt to mandate workplace safety and stay onside with privacy and human-rights law. “We’ve really hit the point now at which privacy concerns and human-rights concerns have butted up against safety in a big way,” says Claire Marchant, employment lawyer with Blake Cassels & Graydon.
Alberta’s employers have always pushed the envelope on nationally accepted—and legally defensible—practices on the drug-testing front, nowhere more so than in the oilsands. “I’ve had the feeling for years that in reality the actual practice is way ahead of where the law is,” says Armstrong.
That is likely to continue through the current period of uncertainty surrounding random drug testing. It may well continue even if CEP, which represents 3,400 Suncor employees in the Fort McMurray area, ultimately carries the day, as most employees in the oilsands generally are not unionized. With several U.S.-based operators in the sands, there is pressure on Canadian subsidiaries and partners to include random drug testing as part of a worksite safety strategy. Although academic research linking random drug testing to better workplace safety metrics is inconsistent, random tests have been part of the U.S. scene for some 30 years.
Those in the legal and human-resources fields think it’s only a matter of time before it comes to Canada. “It will come. It’s just the question of how and with what limitations,” says Armstrong. Alberta employers have embraced the 2007 comments of the Alberta Court of Appeal in the landmark Kellogg Brown & Root v. Chiasson case, which ruled on pre-employment drug testing: “Extending human-rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.”
That’s certainly Suncor’s position. The company sees random drug tests as a tool to combat things like the 100 documented incidents involving drug and alcohol use on Suncor worksites over the past two years, and the three deaths linked to employee drug use since 2000.
But it’s not just Suncor’s fight. The company’s policy is part of an industry-wide Drug and Alcohol Risk Reduction Pilot Project, which includes a multi-faceted drug-testing strategy, including random testing. DARRP participants include Total E&P Canada and Canadian Natural Resources, as well as industry, trade and labour associations.
Until the Suncor case is clarified—and depending on what the Supreme Court of Canada says or does not say about drug testing at Irving—the random part of DARRP’s testing strategy is likely not legally defensible. Employers’ best option going forward? If you want to test, and random test in particular, get it into the collective agreement or employment agreement.
That’s not a guarantee you won’t still face a challenge; there’s no such thing. But it at least gives employers a fighting chance in the hearing room, up against a privacy or human-rights challenge.