The recent arbitral decision in OPEIU and Cougar Helicopters Inc has reiterated the high bar employers must meet to justify random drug and alcohol testing in safety-sensitive workplaces.
The Employer, Cougar Helicopters, operates offshore air transport services for the oil and gas industry in Newfoundland and Labrador, and performs deep water search-and-rescue and medevac flights. Cougar’s unionized workforce consists of pilots, weather observers, radio operators, and search-and-rescue cabin crew. Most of Cougar’s employees occupy safety-sensitive positions, and Cougar has adopted a proactive Safety Management System to mitigate workplace risks.
Cougar’s proactive safety strategy includes a comprehensive drug and alcohol policy. When developed in 2010, the policy applied only to pilots, but it was extended to all safety-sensitive positions in 2012. Drug and alcohol testing pursuant to the policy was put on hold in 2016, after Cougar discovered that testing was not being carried out properly. Cougar began consultations with the union, OPEIU, in 2018 and released a revised policy in May 2019, which includes saliva testing using a mouth swab.
The union took issue with the random testing of employees in safety-sensitive positions, but did not dispute any other aspect of the policy. In 2019, the arbitrator temporarily suspended the random testing portion of the policy pending final arbitration of the union’s grievance (see our earlier Focus Alert regarding this decision).
The union’s argument focused on the legal framework required to justify drug and alcohol testing in a unionized workplace, which recognizes a general right to privacy in the absence of reasonable grounds to suspect impairment. To justify random testing, an employer must demonstrate that drug or alcohol issues exist in the workplace. The union argued that flight operations are highly controlled and routine, and that extensive training is the norm, such that Cougar’s safety culture was already very strong, even without random testing.
The employer, for its part, relied upon Transport Canada’s directive that forbids cannabis consumption by crew members within 28 days prior to participating in a flight, and argued that this could only be enforced through random testing. Since Cougar crews work a 21-day rotation, crew members are consistently within the 28-day limit. The employer conceded that there was no history of drug or alcohol problems in the workplace.
The employer focused on the dangers of operating helicopters over the North Atlantic, emphasizing the impact of the unique workplace on Cougar’s responsibility for the safety of its crews and the public. Cougar argued that the high-risk nature of work performed required a more proactive drug and alcohol testing policy, and that previous decisions on random testing had not considered the effect of the legalization of cannabis, which substantially changed the dynamics of drug and alcohol testing.
The arbitrator allowed the union’s grievance, thereby striking down the random testing portions of the policy. In so doing, she applied earlier Canadian arbitral guidance on random testing, which requires a ‘demonstrated workplace problem,’ and that the employer have evidence of incidents involving known or obviously intoxicated employees that affected workplace safety, or some sort of ‘extreme circumstances.’
Although the arbitrator did not define ‘extreme circumstances,’ she did provide some guidance when she concluded that Cougar’s operating environment was: ‘severe, unpredictable and changeable from moment to moment.’ In other words, ‘extreme circumstances’ are events that require rapid and accurate responses.
In light of these circumstances, the main issue before the arbitrator was whether the employer’s imposition of random testing was an appropriate response. The arbitrator noted that Canadian employers have not experienced recorded widespread cannabis use, and so concluded that without more evidence, the basis for random testing was speculative. She concluded that random drug testing, even with oral swabs, violated employees’ physical integrity such that, absent a demonstrated problem with cannabis, the employer’s many other internal procedures were sufficient safety measures.
In our view
This case demonstrates the high bar that aviation employers must meet to justify the imposition of random drug and alcohol testing, including documenting evidence of a workplace problem. While employers that find a non-invasive manner of screening for impairment may be able to lessen the evidentiary burden for random testing, no caselaw exists yet on this point.