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The HR Space

Arbitrator Rules Random Drug Testing for Helicopter Operators Is Unreasonable

Fasken
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Labour, Employment and Human Rights Bulletin | The HR Space

In 2013, the Supreme Court of Canada ruled that random drug and alcohol testing is generally an unreasonable incursion into employees’ privacy rights. It left open the possibility of random drug testing if there was a demonstrated problem of alcohol and drug use in a dangerous workplace and hinted that there may be other “extreme circumstances” where random drug and alcohol testing could be permissible. 

Cougar Helicopters, which provides helicopter passenger transportation services for offshore oil and gas operations and search and rescue missions in Eastern Canada, argued that its workplace fit the “extreme circumstances” exception, warranting random drug testing of employees in safety sensitive positions, despite the lack of a drug and alcohol problem in its workplace. The Office and Professional Employees International Union (the “Union”) disagreed and filed a grievance challenging the random testing policy. The arbitrator found in favour of the Union.[1] 

The Canadian Model

The 2013 Supreme Court decision in Irving Pulp & Paper outlined the principles of random alcohol and drug testing in Canadian unionized workplaces. First, random alcohol and drug testing is permissible as part of an agreed rehabilitative program in a dangerous work environment. Second, random drug and alcohol testing may be permissible if the employer can prove that there is a generalized problem with alcohol or drug use in a dangerous workplace.[2] 

Otherwise, the Court held that an adjudicator must balance the effect of random testing on the dignity and privacy of employees against the employer’s interest in general deterrence and the enforcement of safe work practices. As part of this balancing analysis, there may be “extreme circumstances”, which would allow employers to conduct general random unannounced drug testing.  Importantly, the Supreme Court stated that the mere fact that employees worked in highly safety sensitive positions or inherently dangerous workplaces do not fit the requirements of “extreme circumstances”.[3] There must be something more.

No Extreme Circumstances at Cougar Helicopters

Cougar Helicopters led extensive evidence to prove that its operations and its employees fit the “extreme circumstances” exception, notably pointing to the following facts:

• The Government of Canada recently legalized recreational cannabis.

• Unlike many other Canadian workplaces, Cougar Helicopters operates in a highly regulated environment. The Canadian Aviation Regulations require employees to be fit for duty. To that end, Transport Canada issued a directive prohibiting flight crews and flight controllers from consuming any cannabis for at least 28 days before being on duty. Since Cougar Helicopter employees work on a three week on/off rotation, employees in safety sensitive positions would generally not be able to consume any recreational cannabis during their time off.

• Cougar Helicopters operates in a unique and extreme environment that differs from other helicopter operators.Its employees are required to land on a variety of structures, including moving structures at sea that are susceptible to heave or pitch and roll.More than 50% of Cougar Helicopters’ flying is done in inclement weather, such as fog, snow, and rain, which may complicate its operations.Further, unpredictable changes during flights require immediate responses and the potential consequences of an error could be deadly.

The arbitrator conceded that Cougar Helicopters employees work in “an extreme work environment”, in a “heavily regulated industry”, and operate flights under “extreme conditions”.  The arbitrator also acknowledged that an oral swab was minimally invasive of employees’ privacy rights. Additionally, the arbitrator held that the recent legalization of recreational cannabis “has made the enterprise even more challenging”. Yet, the arbitrator found that random drug testing would be unreasonable because Cougar Helicopters had not experienced a drug or alcohol related incident in many years. Further, it still had a “fairly broad authority” to test for alcohol and drug use where it had reasonable grounds to believe that a test was warranted based on its interactions with employees.[4] 

Conclusion

The arbitrator’s decision creates a very high threshold to implement random drug and alcohol testing in unionized Canadian workplaces, outside the traditional exceptions. Extreme work conditions, a heavily regulated industry, and the legalization of recreational cannabis do not constitute “extreme circumstances”. 

 



[1]  Office and Professional Employees International Union v Cougar Helicopters Inc., 2019 CanLII 125448 (Ashley) (“Cougar Helicopters”).

[2]  Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd., 2013 SCC 34 at para 32.

[3]  Ibid at paras 33-34, 45.

[4]  Cougar Helicopters, supra at paras 99-103, 106.

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