In a recent arbitration decision, an Alberta arbitrator upheld the right of a contractor to test all prospective employees for drug and alcohol use prior to employment being offered. This policy withstood a challenge by three building trade unions who argued this policy violated their collective agreements and was a violation of the Human Rights, Citizenship and Multiculturalism Act.
The contractor was doing work for an operating refinery which was an extremely dangerous worksite with many workplace hazards. An accident could have devastating effects, not only on the workers, but also on the public. The refinery owner had instituted a policy which required employees have a negative drug and alcohol test prior to access to the site. This requirement was extended, by contract, to employees of the contractor, including employees already working on the site.
The alcohol and drug testing was only part of the overall safety program put in place by both the contractor and the refinery owner. There was a strong emphasis on the importance of workplace safety by this employer. There were extensive orientation programs, daily tool box meetings, safety meetings at the end of each shift, certification required before new tasks were started, and safety bulletins throughout the workplace.
Although the policy addressed testing for both drug and alcohol use, the arbitration focused on drug testing. Statistically, the construction industry has a high level of drug use compared to most other industries. This contractor and these unions had previously agreed upon and utilized the 2001 Canadian Model, which is a blueprint aimed at improving safety in the workplace. The model endorses post-incident and reasonable cause alcohol and drug testing, but was not definitive in its endorsement of pre-employment drug and alcohol testing.
The focus of the employer’s argument in this case was on risk assessment and risk management and not on attempting to show that pre-employment drug and alcohol testing measured impairment in the workplace. The employer’s argument relied heavily on expert witness testimony provided by a physician with a specialty in occupational medicine and a biochemist who had expertise in drug and alcohol testing focusing on the chemical affects of drug and alcohol on the brain as well as the interpretation of drug test results.
Both experts agreed that although tests do not provide definitive proof that someone is impaired, the tests are still valuable tools that provide information about a pattern of drug use. Proper interpretation of test results, especially where employees were given prior notice of tests, will give some indication of recent drug use and of the amount of drug ingested. The higher the levels in the sample, the more recent the drug use, and the longer the drug use, all of which indicate impairment in the workplace may be a problem. While a positive test does not equate to substance abuse or dependence, the higher the test result, the higher the risk of further use and risk of impairment in the workplace.
The arbitrator found that drug and alcohol testing is part of an increasing emphasis on safety in the workplace. The changes to the Criminal Code as well as the strengthening of workplace health and safety under the Occupational Health and Safety Act means employers can no longer ignore drug use in the workplace where workers are exposed to potential danger by virtue of the work they do. This case was not about post-incident or reasonable cause testing. However, the arbitrator noted there should not be a necessity to wait for a serious problem to arise before adopting risk management strategies such as testing for drug use among its employees. The arbitrator recognized that risk management was a priority of this employer on this work site and drug testing was not the only strategy used. The arbitrator placed weight on the information provided on the prevalence of drug use at construction sites, on previous incidents on the site which resulted in four out of six tests being non-negative and the adoption of pre-access testing on other major industrial work sites which consistently had between 5 and 10% failure rates for pre-employment drug testing.
The arbitrator also found the policy withstood the scrutiny of the human rights legislation. The arbitrator found the prevalence of drug use in the construction industry, the potential for adverse consequences, and the use of the least intrusive method possible of testing would satisfy the challenge that could be mounted under human rights legislation. More importantly, individuals with non-negative drug tests were offered, generally through their union, follow-up assessment, testing and counseling if necessary.
The arbitrator also accepted expert evidence that demonstrated that peer and supervisory observation is not an effective method of determining drug use. The detection of impairment by observation by supervisors has been found to be unreliable. It was also found that point of collection testing, as used in this case, is reliable, inexpensive and easy to use.
Evidence was also given by a safety manager for another construction company that clearly demonstrated that after the introduction of pre-employment drug testing, there were significant improvements in safety on that particular construction site.
Implications for Employers
Under this collective agreement, this arbitrator found pre-employment testing was not a breach of human rights and was a reasonable approach for this employer to take to ensure safety on the worksite. One of the factors that may have made a difference in the acceptance of this employer’s drug testing policy is employees who had a non-negative test did not automatically have their employment terminated. Everyone who had a non-negative test was referred for further assessment, and where appropriate, offered treatment.