Drugs, alcohol test employer policies
Alberta oilpatch executives look to strike balance
In the heart of Alberta’s oilpatch, at remote work camps across the province, one of the worst kept secrets is that a general problem exists with the use of alcohol and drugs between or even during shifts.
It’s an issue that oil and gas companies have been trying for years to get a handle on to ensure the safe operations of their facilities and the safety of their workers.
The issue of random alcohol and drug testing has come into the spotlight in recent months with two highprofile cases and it’s a subject that has many employers wondering if their policies are legal, effective and will reduce accidents.
“There’s a balancing act between safety on one hand and employees’ rights to privacy and human rights issues on the other hand,” says Duncan Marsden, head of the employment group at Borden Ladner Gervais LLP’s downtown Calgary office.
Earlier this year, the Supreme Court of Canada upheld an arbitration board’s ruling that Irving Pulp and Paper Ltd.’s random alcohol testing policy was not justified when its union brought a grievance following a negative test for one of its workers.
In the 22 months that the policy was in effect, not a single employee tested positive. In the 15 years prior to the policy, there were only eight alcoholrelated incidents recorded.
Suncor Energy Inc., meanwhile, is awaiting an arbitration board’s ruling on whether taking part in Alberta’s drug and alcohol risk reduction prevention program (DARRPP) meets the legal litmus test.
Whatever the ruling, it’s sure to be appealed, says Marsden.
“The difficulty you have is that the tools the employers are using are really very crude because what the employer is trying to get at is whether the employee is impaired or safely able to operate heavy equipment, for example,” he says.
Confusing the issue is other ways an employee can be impaired. Sleep apnea or sleep deprivation, stress and other lifestyle factors — all of which can impair a person as much if not more than a person who smokes marijuana on a Friday night and returns to work without any impairment on Monday morning, yet tests positive.
“The (drug and alcohol) tests don’t achieve the objective — certainly in relation to drugs — as to whether or not (the employee) is impaired,” Marsden says.
John Balogh, vice-president of operations for health, safety and risk management firm SDS Consulting Inc. in Calgary, says the issue “gets a bit touchy” in safety-sensitive positions where there is typically more governance around the issue.
The focus on drug and alcohol testing tends to increase whenever oilpatch activity — and hiring — increases.
“I suspect it’s part of the cyclical nature of the business,” Balogh says. “When there’s a lot of activity, there’s obviously a lot of testing that takes place and a lot of failures, which brings a lot of pressure on employers.”
In the Irving decision, the courts noted “reasonable cause testing” was justified, meaning when there are grounds to suspect an employee is drunk or impaired. It also com- mented that random testing is justified when a “general problem of substance abuse” has been identified in the workplace through managers witnessing the problem.
Balogh says most human resource departments are trying to understand how to approach the sticky issue with varying degrees of success. “But, at the same time, there’s a lot of murkiness around it in terms of who’s right and who’s wrong,” he adds. “It’s not a perfect system.”
In its 6-3 ruling, the Supreme Court’s dissenting judges argued that to need evidence of a drug or alcohol problem in the workplace before a company can implement random testing is “patently absurd” and potentially dangerous.
Balogh says it’s difficult enough as it is with current labour shortages to staff for any given position in the oil and gas industry, so the issues of impairment and random drug and alcohol testing only complicate things further.
“It’s an imperfect gatekeeper to checking for whether or not people are incapacitated to work,” he says.
Marsden, meanwhile, anticipates oilpatch executives and HR departments will continue to struggle with finding the right balance.
“There’s definite uncertainty among employers,” Marsden says. “A lot of people, particularly in Alberta, are waiting to see what the arbitration board says in relation to Suncor before they take any more definite steps.”