Managing Drugs and Alcohol in Alberta Workplaces

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Presentation transcript:

Managing Drugs and Alcohol in Alberta Workplaces Health & Safety Conference Society of Alberta November 8, 2016 Managing Drugs and Alcohol in Alberta Workplaces Shana Wolch & Justin Turc

Drug and Alcohol Testing Balancing of competing interests Employer’s duty to provide safe and healthy workplace Employee’s privacy rights and human rights

Agenda Types of Drug and Alcohol Testing Methods of Drug and Alcohol Testing Legal Challenges to Testing Jurisdiction of AHR Dependencies Policies O&G Industry Examples Take Aways

Types of Drug and Alcohol Testing Types of testing Pre-employment and pre-access For cause: post-incident For cause: reasonable suspicion Random / periodic Return to work / duty Follow up program

Types of Drug and Alcohol Testing

Methods of Drug and Alcohol Testing Types of testing procedures Drugs Urine sample Point of collection (screen) Oral fluid Alcohol Breath analysis

Legal Challenges to Testing Human rights Privacy Labour arbitration Common law Variety of applicable requirements and obligations

Legal Challenges to Testing Wrongful dismissal civil actions Human rights complaints disability vs recreational use Labour arbitration grievances Privacy complaints

Jurisdiction of Alberta Human Rights The AHRC does not take jurisdiction on whether an employer can test. AHRC may take jurisdiction when: A refusal to accommodate a substance dependency to the point of undue hardship; Adverse job action taken against an employee or union member based on a perception of substance dependency (e.g. pre-employment testing); Potential of a discriminatory drug and alcohol policy (e.g. provides for automatic termination for failing testing); or an employee has a substance dependency and fails testing for drugs or alcohol but is not assessed/accommodated.

Drug and/or Alcohol Dependencies Assessment of an employee’s drug or alcohol use by a qualified professional Accommodation to the point of undue hardship Leaves of absence Modified (non-safety sensitive) duties

Drug and Alcohol Policies Identify purpose and fitness for work expectations/exceptions Identify types and methods of testing Workplace searches? Assessments Accommodation Policy violations and potential consequences Consider contractor issues Consider privacy, human rights and OHS

Oil and Gas Industry Examples Alberta (Human Rights) v Kellogg Brown & Root, 2007 ABCA Construction company working on upgrader refinery High accident risk Post-offer/pre-employment drug testing Not terminated for perceived drug addiction

Oil and Gas Industry Examples Entrop v Imperial Oil, 2000 ONCA Oil refinery Comprehensive drug and alcohol testing policy Distinguishes between alcohol and drug testing No random or pre-employment drug testing Random alcohol testing is reasonable for safety-sensitive positions For cause alcohol and drug testing is reasonable

Oil and Gas Industry Examples Communications Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Limited, 2013 SCC Grievance challenging random alcohol testing Paper mill, dangerous work environment 8 alcohol-related incidents in 15 years Random alcohol testing not justified

Take Aways Have a drug and alcohol policy Train employees on the drug and alcohol policy Implement and use the drug and alcohol policy Consider the law

Questions?