The workers’ union at Agrium Vanscoy Potash Operations (AVCO) in Saskatchewan claims that AVCO violated its employees’ fundamental right to privacy.

As part of its drug and alcohol testing program and mandatory entry requirement, Saskatchewan based mining company AVCO employed drug sniffing dogs at its gatehouse on random days to test workers for substances upon their arrival to work. When an “alert” was triggered by one of the dogs, the employee in question was subjected to a second sniff test as well as a follow up interview in a private area of the site. If the employee was found to be in possession of drugs or alcohol, they were directed to an offsite urinalysis test.

The union filed a grievance against this process, specifically the “search/interview” portion, and deemed it to be an unjustifiable violation of the fundamental employee right to privacy.

Arbitrator Ken Norman recognized AVCO as a safety-sensitive workplace, and acknowledged that the use of drug testing dogs had not been included in prior assessments conducted by the Supreme Court of Canada’s rulings on employee privacy, but upon analyzing the use of “search/interview” to test employees, Norman invoked Charter values and determined that private interviews in this context were an infringement on employee privacy, as a forced explanation could lead to the employee revealing private information about his/her lifestyle.

In this circumstance, AVCO did not use deterrence, detection, or risk reduction before the search/interview process and thus did not provide a threshold standard, which in turn established no evidence to support that there was a drug problem to be addressed at the company in the first place. While the use of drug sniffing dogs was at the time unprecedented, the main objection was to the much more intrusive nature of the search/interview that followed the initial dog tests.

 

Opposition to Arbitrator Norman’s findings include his use of Charter analysis in private sector law, and the arbitration precedent that employers do not require advance proof of an existing drug problem in order to use drug testing policies.

 

Alternatives to employing drug-sniffing dogs to find evidence of drugs entering work sites include:

• Using an EFAP provider to obtain drug use data that maintains the anonymity of employees,
• Carefully documenting all instances of drug and alcohol use on the worksite,
• Conducting anonymous drug and alcohol surveys at the worksite, and/or
• Testing workstations and equipment to detect drug residue.

 

Employers should avoid:

• Using  controversial methods to detect drugs (like drug sniffing dogs), as these can be found as unreasonable acts if they are not accompanied by proof of an existing drug and alcohol problem in the workplace, and/or
• Conflating policies regarding impairment on the job site and policies regarding possession of drugs in the workplace; ie., employees suspected of carrying drugs into the workplace should not be randomly tested for drug use.