Random drug testing: privacy versus safety

Random drug testing: privacy versus safety

December 31, 2007

Random drug testing of employees pits their privacy against workplace safety, and the jury is still out on which side is being given more weight in the courts, says Toronto litigator Stefan Rosenbaum.

“The courts go through this balancing act between privacy rights and occupational health and safety,” Rosenbaum, an associate with Shibley Righton LLP, tells AdvocateDaily.com.

There’s a lack of case law on random drug testing, he says, noting that the Supreme Court of Canada only addressed the issue for the first time in 2013 in what’s seen as a leading decision on the matter. It sided with the union in deciding not to interfere with an arbitrator’s ruling that the company’s random testing policy was unjustified.

“In that case, the court set out relatively strict criteria in terms of when you’re allowed to do random drug testing. It only applies to very specific industries,” Rosenbaum says. “It’s not something that would get litigated frequently. It doesn’t come up as often as you’d think.”

The issue is most prevalent in Alberta, he says. “They’re more favourable toward employers because oil and gas is just such a massive part of their economy” and is a dangerous industry in which to work, unlike Ontario, for example, where “the courts are a little more hesitant to allow an infringement of privacy rights.”

“The facts wouldn’t be exactly the same in Ontario as they would be in Alberta in terms of assessing the factors that you need to meet to have a random drug-testing policy in place,” Rosenbaum explains.

“I think you’re going to see Alberta driving the case law,” he adds, referring to a recent ruling on random drug and alcohol testing from the Alberta Court of Queen’s Bench, which granted a union’s request for an injunction.

The case — which has been ongoing since 2012, when an oilsands company introduced a new drug and alcohol policy that would include random testing — demonstrates how the province’s judicial system has been grappling with privacy versus safety issues.

A three-member arbitration panel in 2014 ruled 2-1 in favour of the union after it brought a grievance opposing the policy, but the company’s application for judicial review in the Court of Queen’s Bench was successful in 2016 after the court disagreed with how some evidence was handled by the panel. The matter was then sent back to arbitration before a fresh panel.

The Alberta Court of Appeal upheld that decision in September 2017, and the union is seeking leave to appeal the ruling to the Supreme Court.

The injunction granted in December once again puts the company’s drug and alcohol testing plans on hold until the appeal is dealt with and/or the case is heard by a new arbitration panel, although the CBC reports that the company plans to appeal the latest decision.

“If the injunction were not granted and random drug and alcohol testing started, it would create a chaotic situation if, ultimately, the union is successful in the arbitration with the result that [the company] would be prohibited from continuing with random drug and alcohol testing,” Justice Paul Belzil wrote. “Safety concerns, while relevant, are not sufficient to tip the balance of convenience in favour of [the company].”

Rosenbaum says it’s important to distinguish between random drug and alcohol testing and “post-incident” testing, which takes place after a workplace accident, for example. “The employer has much more leeway to do a drug test in such situations because there’s an incident that can be investigated.”

And it’s much more difficult for a union to argue against testing post-incident, “because the evidence can be very specific,” he says.

“Unions are generally going to push back on drug testing in general. They’re there to protect the rights of their members. But it’s much harder for them to say no to a drug test when there’s clear evidence there was an accident.”

He notes that “employers do have genuine concerns. And unions obviously have concerns as well” over the intrusiveness of taking bodily fluids from workers.

“I sympathize with the courts that are going to have to deal with these sorts of questions because it’s hard to define privacy. To each judge, it’s going to mean something different,” Rosenbaum says.

“For one judge, evidence of a certain percentage of employees abusing alcohol or drugs could be substantial, whereas for another judge, it wouldn’t be substantial and wouldn’t justify infringing somebody’s privacy rights.”