You might say that the issue of alcohol and drug cutoff levels, or periodic testing programs in the oil industry, began in earnest with the Exxon Valdez incident. On March 24, 1989, the Exxon tanker hit a reef, which ripped open the ship’s hull, permitting about 11 million gallons of crude oil to escape. Unfortunately, the spill spanned over the waters when a storm blew into the area shortly after the event.
As a result of the incident, over 1,000 miles of shore were ruined and thousands of animals died. The oil company, in return, paid for the cleanup, spending billions of dollars in costs and fines. While the captain of the Valdez, Joseph Hazelwood, was ultimately acquitted for being intoxicated at the time of the mishap, he was charged for the negligent discharge of crude oil and had to pay a fine of $50,000. He was also required to perform 1,000 hours of community service.
Although most of the oil cannot be seen today, it still lingers, concealed below the surface of Alaskan beaches. According to the National Transportation Safety Board, the accident resulted from the oversight of a third mate to navigate the vessel correctly. This was surmised to have happened as the result of an excessive workload or extreme tiredness.
The disaster was also attributed to the captain, who failed to offer the proper watch navigationally. This oversight, as noted, was thought to be due to impairment from alcohol. Other factors contributing to the incident included:
Failure of the Exxon Shipping Company to oversee the master of the tanker and provide a crew that was sufficient as well as rested.
The lack of an efficient vessel traffic system by the US Coast Guard.
Insufficient escort and pilot services.
Before the incident, reports indicate that the captain was spotted in an area bar and did admit to having several alcoholic drinks. A blood test confirmed that alcohol was in the captain’s blood after the incident.
Not only has the event opened oil company eyes to the danger of taking drugs or drinking on the job, it also has led to enhancements in spill prevention and response implementation. Additionally, the Valdez spill has caused Canadian oil company, Imperial Oil, to set up a random drug and alcohol testing program.
However, the policy on which the program is based led to a human rights complaint in the case of Entrop v. Imperial Oil. The Ontario Court of Appeal rendered a decision that favored the plaintiff, stating that the policy instituted by the oil company violated the Human Rights Code in Ontario.
However, the decision did not keep oil companies and employers from requiring random drug and alcohol testing in their personnel policies. While unions cited that random drug and alcohol testing infringed on the privacy of employees and were managerially unreasonable, employers said these types of policies were necessary. They added that the policies were legitimate attempts for preventing substance abuse among workers – activities that could cause disasters that compromised workplace safety.
Is the Workplace Dangerous?
According the law, to order random drug and alcohol testing in a unionized setting, the workplace must be considered dangerous. Naturally, an oil refinery would hold this classification. However, for many employers, “danger” in the workplace is not clearly defined.
The alcohol and drug policy of ExxonMobil and Imperial Oil of Canada (which is owned by ExxonMobil), states that all employees in the workplace are expected to be drug and alcohol free. Therefore, in cases where an employee has a substance abuse or substance dependence issue, personal treatment and rehabilitation are advocated for helping the employee overcome his or her addiction.
The policy states that all employees, regardless of their job, are subject to alcohol and drug testing after an incident. This type of measure is done to rule about substance abuse as the reason for an event. However, if a post-incident test does show substance use, it does not mean that that the impairment was the major cause for a certain incident. Therefore, this type of testing only supports the company’s efforts in investigating the situation.
Testing may also be performed periodically as part of post-rehab monitoring and aftercare program. This type of test is allowed so an employee, with a past substance abuse or dependence problem, can re-enter the workforce and continue in his or her job. However, employers need to be careful, too, in this respect. ExxonMobil, in the case A.D.P. v. ExxonMobil, lost its bid to dismiss a case where a long-time employee told her employers that she was an alcoholic and therefore would be taking leave to go into rehab.
Upon her return, her employers had her sign an agreement that said she had to abstain from alcohol and take random and periodic breathalyzer tests – all as a condition for continuing her employment While she passed all the random breathalyzer tests, she failed additional testing, which showed her blood alcohol was between 0.04% and 0.05%. When she was fired after the failed test, she sued for disability discrimination.
Because the plaintiff’s work performance was never in question and she did not affect the safety of those around her, the court threw out the employer’s request for a dismissal. Bottom line – you need to make sure that, if you test for drugs or alcohol that it is being done as a business necessity or for reasons of safety.
Creator: Veritas Laboratories LLC