1. 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

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

3. 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

5. 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

6. Types of Drug and Alcohol Testing

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

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

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

10. 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.

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. Questions?