Canadian Employers Emphasize Safety in Random Drug Testing But legal debate continues: Does it violate workers’ privacy?

By Catherine Skrzypinski Sep 25, 2014
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Companies in Canada with dangerous work environments have argued that when employees abuse alcohol or drugs—on or off the job—the chances of injury at work rise. Employers are adopting random alcohol and drug testing policies to ensure a safety-sensitive workplace, despite a June 2013 Supreme Court of Canada ruling that arbitrary substance abuse testing is not justified.

Glen Campbell, director of human resources for the coal business unit of Teck Resources Ltd. in Sparwood, British Columbia, said the mining company continues to administer alcohol and drug tests to 4,000 employees, managers and contractors at its five B.C. coal mines.

“We strongly believe that taking measures to eliminate potential misuse of drugs and alcohol that can affect at-work performance and safety is an important way we can achieve our vision of everyone going home safe and healthy every day,” Campbell said in an interview with SHRM Online.

The United Steelworkers (USW) union has opposed random alcohol and drug testing in the Canadian workplace. Union leaders have advised Teck to suspend testing until an arbitrator makes a decision on whether the policy is legal.

Campbell said more than 100 Teck employees and contractors have tested positive for either drugs or alcohol since December 2012. If employees test positive, then they must undergo an assessment by a substance abuse professional. Teck is prepared to pay for rehabilitation if the employee is willing to attend.

Upon completing treatment for substance or alcohol abuse, the employee can return to work with conditions—including unannounced testing for a further period of up to two years, Campbell added.

“These results, coupled with the requirement to undergo assessments, treatment and monitoring prior to returning to work, confirm the program is indeed working to improve overall safety at our operations,” Campbell noted.

Right to Privacy

USW representatives say the union wants to ensure workers’ right to privacy, and that random alcohol and drug testing is contrary to Canada’s human rights laws.

According to the Canadian Human Rights Commission’s policy on alcohol and drug testing, workplace rules and standards—which may include employment-related alcohol and drug testing—that have no relationship to job safety and performance violate an employee’s human rights.

Georg Reuter, a partner with Richards Buell Sutton LLP in Vancouver, told SHRM Online that random testing during employment violates a worker’s right to privacy, in agreement with the Supreme Court of Canada ruling.

“The court ultimately sided with the employees on this issue,” he added. “The court decided that random alcohol and drug testing of employees would not be permitted, unless an employer could prove there was a general problem with abuse in its workplace. The onus will be on Teck to prove this, and that random testing is an effective way to make the workplace safer for its employees.”

Human resource managers should be guided by the court’s ruling rather than following Teck’s decision to continue intermittent substance abuse testing on its employees, Reuter explained.

“It is crucial for employers to obtain specific legal advice on their particular workforce, workplace and situation before adopting an alcohol and drug policy and before making any disciplinary decision involving an employee who may be using—or is suspected of using—drugs or alcohol while on the job.”

Catherine Skrzypinski is a freelance writer in Toronto.​

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