Two current high-profile legal cases, in which companies want to implement random testing of their employees for alcohol and/or drugs, may determine whether such testing expands in Canadian workplaces. At the centre of both cases is the need for a safe workplace versus privacy and human rights.

In New Brunswick, Irving Pulp and Paper wants employees at its mill operations to undergo random alcohol tests but the Communications, Energy and Paperworkers Union (CEP) is opposed. On Friday the case reached the Supreme Court of Canada.

In Alberta, Suncor Energy is trying to bring in a random drug and alcohol testing program for employees and contractors at its oilsands operations in Fort McMurray. The CEP is resisting Suncor's efforts, with an arbitration hearing that was scheduled for today postponed until Jan. 2.

The Supreme Court of Canada is reviewing a case which will determine whether Irving Pulp and Paper can implement a random alcohol testing program at its mill operations in New Brunswick. (Blair Gable/Canadian Press)

Calgary lawyer Birch Miller, who specializes in this area of law, writes that these cases will indicate "whether random alcohol and drug testing policies have a future in Canada."

Random drug testing arrived in Canada from the U.S., first for cross-border commercial truck and bus operations, as required by the U.S. government. In the U.S., where drug testing is federally regulated, random testing is prevalent everywhere, according to Peter Deines of CannAmm Occupational Testing Services, the largest occupational drug testing company in Canada.

Although they do have some clients in the U.S., as a Canadian company CannAmm can only long for the business opportunities in the U.S.

Random drug testing much more prevalent in U.S. than Canada

Drug testing is prevalent in only a few industries in Canada. In an addition to cross-border transport, there's energy production, heavy industrial construction, potash and industrial engineering, Deines explained in an interview with CBC News.

Peter Deines of CanAmm Occupational Testing Services says that drug testing is prevalent in only a few industries in Canada but is prevalent everywhere in the U.S. (Gregg Ingram/Courtesy CanAmm)

He explains that in Canada the testing is mostly limited to "very safety-sensitive oriented workplaces," whereas in the U.S. there is no similar safety limit. Even in retail, financial, manufacturing, education, and health, American workers undergo random drug testing.

"The amount of testing Wal-Mart does in the United States greatly exceeds the entire number of tests that are done in the Canadian market," Deines says.

In the U.S. companies say they test for reasons other than safety — to identify theft risk, employee reliability, improve productivity — while in Canada the courts have only accepted workplace safety as a legitimate reason to do drug testing.

"The tradeoff in Canada is between the privacy and human rights element and the duty to provide a safe workplace," Deines explains.

Drug and alcohol testing 'discriminatory'

The Canadian Human Rights Commission, which is appointed by Parliament, says in a policy paper on alcohol and drug testing that, "drug and alcohol testing are prima facie discriminatory."

Alcohol or drug dependence, whether past or current, is considered a disability. Canadian law prohibits discrimination on the basis of disability.

The Commission adds that "discrimination based on the actual or perceived possibility that an individual may develop a drug or alcohol dependency in the future" is also prohibited.

However, "employers can justify discriminatory practices and rules if they are a bona fide occupational requirement."

Employers can test for drugs or alcohol when there is reasonable evidence of substance abuse, after an accident or incident where the employee's role may have been a contributing factor, and as follow-up testing after treatment for drug abuse.

The conundrum under Canadian law involves random testing.

The Commission accepts that truckers and commercial bus drivers can be subject to random testing. In other industries, important factors in determining if random testing may be done include whether employees are under direct supervision; whether less invasive alternatives exist to "determine whether employees in safety-sensitive positions are impaired on the job;" evidence of high incidence of drug use on the job; and if the employer has a rehabilitation program in place.

Drugs tests don't determine impairment

The Commission also draws a distinction between random testing for drugs versus alcohol. Noting that drug tests cannot measure whether a person is "under the influence" at the time of the test but only detect past drug use and not "whether that person is impaired at that moment, or is likely to be impaired while on the job."

Suncor wants to implement random drug and alcohol testing for employees at its oilsands facility near Fort McMurray, Alta. (Jeff McIntosh/Canadian Press)

Therefore, the Commission argues that "random drug tests cannot be shown to be reasonably necessary to accomplish the goal of ensuring that workers are not impaired by drugs while on the job." Also, requiring a drug test "as a condition of employment may be considered a discriminatory practice on the ground of disability or perceived disability."

Deines looks at the Canadian numbers for post-incident and reasonable cause testing and sees a problem. When testing in reasonable cause situations the results turn up positive about 30 per cent of the time. Deines explains that "because there are so many factors in the worksite, it's difficult to prove causality, but what you notice is a very high correlation between incidents and drug and alcohol abuse."

CannAmm reports that "[r]andom drug and alcohol testing has emerged in Canada as the most effective safety compliance tool in ensuring employee fitness in safety sensitive roles."

Opposition to random testing

Abby Deshman, a lawyer with the Canadian Civil Liberties Association, argues that random testing "imposes a privacy-invasive, dignity-invasive regime on a large number of people without any real proof that these people are going to pose a threat to workplace safety," adding that "there's very little evidence that it does actually work as a deterrent."

(The CCLA is an intervener at the Supreme Court in the Irving case.)

Abby Deshman, a lawyer with the Canadian Civil Liberties Union, considers random drug testing 'privacy-invasive and dignity-invasive' for employees. (Courtesy Abby Deshman)

Deshman is especially concerned when companies say they want to bring in random testing "in the name of workplace safety without actually having any evidence that there's a problem in the workforce, or having an analysis that this is actually going to improve workplace safety."

Although the CHRC notes the difference between alcohol and drugs random tests, Deshman argues "some justification for the intrusion into worker dignity and privacy" is still needed.

"Can you actually show us that there's an alcohol problem in the workplace, can you show us this policy is the best and least intrusive way of addressing those concerns and if these are questions that haven't been asked and answered…, then you shouldn't be intruding on employee privacy and dignity without it."

Deshman told CBC News she wants Canadian society "to critically reflect on workplace privacy violations even when they're done in the name of workplace safety and really demand we know exactly why they are being put in place, that there's a really good rationale, that it really does increase workplace safety and not just defer to a general assertion that this is a dangerous job and we need to take all precautions."

The jurisprudence in Canada is anything but definitive on random testing but the Irving and Suncor cases are expected to add some clarity. Meanwhile, other possible cases loom.

The Toronto Transit Commission wants to bring in random drug and alcohol testing and the Canadian Forces want to greatly expand the number of troops subject to identifiable random drug testing, rather than just the anonymous testing program currently in place.

For Deines and Deshman, both workplace safety and the dignity and privacy of employees must be considered.