Drug testing pits privacy against safety, Judges to hear Suncor arguments by Amanda Stephenson, November 24, 2012, Calgary Herald
A three-judge Alberta Court of Appeal panel will next week hear from Suncor Energy Inc. as the oilsands giant argues against an injunction blocking its proposed random employee drug testing program. Next month, the Supreme Court of Canada will hear the case of Irving Pulp and Paper, a New Brunswick company whose plan to have its employees submit to mandatory breathalyzer tests has been fought tooth and nail by the same union that represents Suncor workers. Both cases will be watched closely by employers, safety companies and privacy experts, as the courts try to find a balance between safety on the job and an individual’s right to privacy. Unlike the United States, where workplace drug tests are relatively common, Canada has had little experience with randomly administered on-the-job tests. But that could be about to change. “Employers have to take action. They’re responsible for maintaining a safe work environment,” says Pat Atkins, administrator of Alberta’s Drug and Alcohol Risk Reduction Pilot Project (DARRPP). “There are problems in the oilsands related to alcohol and drugs … and we think it would be irresponsible for organizations not to take action, given the concerns they’re seeing.” Those concerns range from drug paraphernalia found on work sites to workplace accidents caused by drunk or stoned employees. Suncor has stated three of the seven deaths that have occurred at its Fort McMurray oilsands operation since 2000 involved workers under the influence of alcohol or drugs.
“Every day that passes, the risk increases,” Suncor lawyer Tom Wakeling told the Alberta Court of Appeal last month. “The Suncor workplace is inherently a dangerous space. The consequences of mistakes in this hazardous environment may include catastrophes.” Most oilsands companies already have some form of drug-testing policy in place – in most cases, testing occurs after an accident takes place, or if an employee exhibits behaviour that provides “just cause.” In some cases, employees must pass a drug test before being hired for a certain position or before being contracted to work on a certain job site. DARRPP is different. The two-year pilot project, led by a working group of oilsands industry employers and labour providers, aims to introduce completely random drug testing in “safety sensitive” positions at participating workplaces. Organizers of the project point to U.S. data that indicates random testing is more likely to catch workplace drug and alcohol problems than incident-driven testing. One of the first companies to get on board with DARRPP was Suncor, which announced in June its plan to implement mandatory random drug tests for safety sensitive employees at its oilsands facilities. However, before Suncor could implement its proposal, a grievance was filed by the Communications, Energy, and Paperworkers Union. The union, which represents 3,400 workers at the Suncor site, argued random drug testing violates its members’ right to privacy. “This is about the right to preserve their bodily integrity, quite frankly. Their privacy, their dignity,” union lawyer Ritu Khullar told the appeals court last month.
Days earlier, a Court of Queen’s Bench Judge issued an injunction, ruling Suncor cannot move ahead with its program until the union’s grievance can be reviewed by a labour arbitration board. Suncor appealed, and that appeal is set to be heard on Wednesday. The same union is also fighting Irving Pulp and Paper, the New Brunswick company that introduced a workplace safety policy in 2006 that included random alcohol testing for employees. That case will be heard by the Supreme Court of Canada in December. Atkins said DARRPP is confident it is well within its legal rights. “We believe we have designed the project in such a way to respect privacy and human rights,” Atkins said. Ed Secondiak, president of ECS Services – which has designed drug testing programs for large and small corporations for 18 years – says there are ways to ensure employees’ rights are respected while still reducing the risk of on-the-job substance abuse. Secondiak said when he designs a program, all drug test results are reviewed by a medical review officer. If a test comes back positive, the medical review officer will speak privately to the employee in question, and if he or she can provide a medical reason for why they might have a drug in their system, they are given an all-clear without their employer ever being informed of the original test results. Test results are kept under lock and key with limited access, and are never shared with outside agencies without the employee’s permission. Secondiak says in most cases, when a person fails a test, he or she is sent for a substance abuse assessment. An addictions counsellor will decide whether the individual can come back to work, or needs more treatment. He said in many cases, being flagged by a workplace test is exactly the push some addicts need to get treatment and turn their lives around. “I would say there’s a high success rate when you’re dealing with alcohol and marijuana in terms of being able to bring people back (to the job),” he says.
Dr. Charl Els, an addictions psychiatrist with the University of Alberta, agrees substance abuse in the workplace is a serious issue. Using U.S. statistics as a base – because there are no reliable Canadian statistics – he estimates that 8.3 per cent of full-time workers use illicit drugs. “We likely are only seeing the tip of the iceberg in terms of the visible cases of substance use and abuse,” Els says. “It’s well accepted that we underestimate the prevalence and the actual impact.” Els also believes the nature of the oilsands industry means workers there are more likely to use drugs. “It’s typically a young, male population, there’s a lot of excess time when they don’t work, there’s a lot of disposable income and cash in the pocket. They’re typically not with their families, they’re isolated. So there’s a number of factors that make people more prone to use,” he says. However, Els says random drug testing is the wrong approach. He says a typical urine test only detects the presence of a substance in a person’s system – it can’t detect whether the person is impaired. That means it cannot differentiate between a person who smoked marijuana 20 minutes earlier and is stoned on the job versus a person who smoked a joint at a weekend party three days ago. “The vast majority of people who use cannabis instead of having a beer on Friday evening may well test positive on Monday morning, and without it remotely having any impact on workplace impairment or occupational risk,” Els says. “What they will detect is a whole lot of normal, recreational users with no risk to the workplace. And that I view as an invasion of privacy.” Els adds there are a lot of workers and professionals other than oilsands employees who can be considered to be doing “safety specific” work, and they aren’t being subjected to random drug tests. “You can imagine the uproar if I suggested tomorrow we need to start testing all physicians for cannabis,” he said. “By this logic, any individual operating a vehicle for work should not be able to do so unless they can test negative.” Els says he has no problem with post-accident or just cause workplace drug testing, it’s the random testing he opposes. He says there simply isn’t enough solid evidence that random drug testing reduces the rates of workplace accidents, adding he too will be watching the Suncor case and the Irving Pulp and Paper case with interest. “I would be surprised if random testing will actually be cleared as acceptable and not in violation,” he says.