The Alberta Court of Queen’s Bench has recently issued a decision on Phillips v. Westcan Bulk Transport Ltd, upholding a non-unionized employer’s use of random drug and alcohol testing in Alberta for safety sensitive positions.
This decision provides further clarity and guidance regarding express employee agreement on random drug and alcohol testing. Specifically, the court has held that random drug and alcohol testing is allowed when there is an express provision in an employment agreement to do so.
The decision was issued after an employee of Westcan Bulk Transport Ltd., Mr. Randall Phillips, objected to being subjected to random drug and alcohol testing and sought a permanent injunction against his employer to stop testing him.
In October 2015, Mr. Phillips had accepted an offer of employment from Westcan Bulk Transport Ltd. as a long haul truck driver to transport dangerous goods. The offer included an express condition, stating the following clause: “the offer is made subject to your compliance with: … our corporate policies …”. In addition, the offer also stated that Mr. Phillip’s position was “deemed safety sensitive.”
After accepting the offer, Mr. Phillips had undergone training on Westcan’s operations policies. He was informed that “[r]andom drug and alcohol testing will apply to positions deems [sic] safety sensitive.” He had also completed a policies and procedures examination, which included a question regarding whether safety sensitive employees were subject to random drug and alcohol testing. Importantly, Mr. Phillips had previously been employed by Westcan and had received similar training and testing in 2013.
In order for the court to grant the injunction sought by Mr. Phillips, it was necessary for him to establish that he had an enforceable right to not be subject to random drug and alcohol testing.
The Court found that Mr. Phillip’s had agreed that random testing formed part of his contract. Furthermore, the Court based its conclusion on the fact that Mr. Phillips had acknowledged in the expectation agreement and his employment contract that he was in a safety-sensitive position and that accordingly, he was required to comply with Westcan’s policies. Mr. Phillips had also completed training regarding the testing policy.
The Court also determined that when Mr. Phillips accepted Westcan’s offer of employment, he expressly agreed to be bound by Westcan’s policies and he knew that those policies included random drug and alcohol testing for drivers.
The Court’s decision was formed after determining that the workplace testing policy was an enforceable term of Mr. Phillips’ employment contract. However, it also emphasized that its analysis was context-specific, cautioning that it was not clear what test a non-unionized employer would need to meet to implement unilateral testing without a contractual basis.
Nevertheless, this decision offers some general guidance as to when an employer has a contractual right to enforce random drug and alcohol testing for safety-sensitive positions. Accordingly, employers need to ensure that employees are made aware of contractual drug and alcohol testing policies during the onboarding process.
