In a recent Alberta court case, an employee attempted to challenge his employer’s policy on random drug and alcohol testing. However, the court ultimately found that the employee’s employment contract required him to comply with the random testing.

Employee Challenges Random Drug and Alcohol Testing

The employer, a transportation company in Alberta, started conducting random drug and alcohol testing of its employees in safety-sensitive positions in 1999.

The employee signed an employment contract with the employer in 2015 to work as one of its drivers and thus became subject to random drug and alcohol testing pursuant to the contract. The employment contract stated that he would be subject to the employer’s drug and alcohol policy. The policy set out the requirement for random testing and stated that employees who refused to comply would be suspended, and may further be subject to disciplinary action, including termination.

Included in the employment documents signed by the employee was an expectation agreement, which included the following paragraph:

“I have read and have had an opportunity to ask questions about the driver expectations set forth by [the employer]. I understand by signing this document that should I become a driver with [the employer] I will be held to these expectations.”

However, the employee subsequently applied to court to obtain a permanent injunction against the employer to prohibit the random testing. Specifically, the employee argued that, as a general rule, random drug and alcohol testing in an employment context is prohibited unless there is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace. The employee therefore submitted that the random testing clause in the employment contract was unenforceable.

Court Finds That Employee Must Comply With Testing

At the outset, the court concluded that when the employee accepted the offer of employment, he had expressly agreed to be bound by the employer’s policies. Further, the court held that the employee knew that those policies included random drug and alcohol testing. As a result, the court held that the testing was a term of the employee’s employment contract with the employer to which he had expressly agreed.

Turning to the enforceability issue, the court began by distinguishing the cases cited by the employee in support of his claim. The court explained that such case law related to unionized workplaces, which was not the case for the employee. Additionally, the court noted that those cases dealt with unilaterally imposed random testing which do not apply where an employer and employee have expressly agreed to random testing. As such, the court explained:

“The enforceability of a contractual drug and alcohol testing regime does not turn on the reasonableness of that regime, as it would if random testing were imposed unilaterally. An employer and employee are free to agree to conditions of employment, provided those conditions comply with employment standards, human rights and other legislation, which have not been raised by [the employee], and provided those conditions of employment are not otherwise unconscionable. Random drug and alcohol testing is not an unconscionable term in an employment agreement for a driver hauling dangerous goods over long distances, without supervision. Consequently, [the employee] is subject to random drug and alcohol testing which he agreed he would be subject to when he accepted employment with [the employer].”

In addition, the court observed:

“Even if [the employee’s] employment were governed by a contract which did not expressly permit [the employer] to conduct random testing, [the employer] would be justified in unilaterally imposing random testing on its drivers, because of the enhanced safety risks of [the employer]’s business.”

As a result, the court rejected the employee’s application, ruling that he was subject to random drug and alcohol testing under his employment contract. 

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