The Canadian government told Global News it’s “too early” to say whether random alcohol testing of pilots will be considered at a spring aviation safety summit after impaired charges were laid against a Sunwing pilot who was found unconscious in a plane at the Calgary airport.
The uncertainty is likely caused by court rulings that make it difficult to impose random tests in the workplace.
READ MORE: Transport minister calling on Canada’s airlines to ensure pilots are fit to fly
A lawyer who specializes in impairment and employment laws says random testing is “almost never permitted” in Canada–despite being a routine part of American testing regulated under the Federal Aviation Administration (FAA).
He pointed to a 2013 Supreme Court of Canada decision, also cited by Canadian airlines and the Justice Department, which ruled random testing of employees would only be permitted in very rare instances in which an employer could prove there was a general problem with drug and alcohol abuse in the workplace.
“Otherwise, even in safety-sensitive jobs, just randomly testing people is seen as an invasion of their privacy and as a breach of their human rights,” Georg Reuter told Global News Friday.
But Reuter believes it’s possible to implement such a law.
“If the federal government saw fit to pass a rule that said, ‘pilots can be subjected to random drug and alcohol testing’ that should be a valid rule or piece of legislation,” he said. “If it were to apply to everyone in non safety-sensitive positions, then there might be some privacy, human rights or Charter challenge to the enforceability of the rule.
“But applied strictly to airline pilots, I think there’d be a fair chance that that sort of rule would be upheld.”
Watch below: Reid Fiest looks into how airlines ensure pilots are fit to fly
The transport minister’s office is not saying whether random alcohol and drug testing of pilots will be on the agenda at the spring 2017 aviation summit he ordered Thursday.
A minister’s spokesperson told Global News the agenda is still being developed and all relevant topics are being considered. But the spokesperson said it was “too early” to say if random testing was a relevant topic.
READ MORE: Transport minister convenes aviation safety summit after arrest of Sunwing pilot
In the U.S., American airlines “must ensure that any safety-sensitive employee (which includes pilots that perform flight crewmember duties and flight attendants) is subject to random alcohol testing throughout their employment.
“Both the Department of Transportation and FAA consider random testing as an important tool to detect and deter employees from using drugs and misusing alcohol while performing safety-sensitive duties,” drug abatement division program policy branch manager Vicky Dunne said in an email to Global News on Thursday.
For how the FAA calculates the number of random tests, visit Attachment A here
Reuter suggests the difference in laws between the neighbouring countries has to do with culture.
“The U.S. doesn’t have a culture that’s as attuned to privacy rights and they have a culture that’s been, over the years, much less tolerant of drug use in particular, you know, the U.S. ‘war on drugs,’” he said. “So it’s a difference in culture and perception.”
Nevertheless, he thinks there is a gap in Canadian law, particularly for positions such as pilots who cross borders as part of their job, and encourages Transport Canada to carefully consider next steps.
“I think there is merit in trying to bring us into line–at least for those positions. And I think few people would really, from my perspective, argue that testing your pilots, truckers, people who are truly involved in very safety-sensitive jobs, is a bad thing.
“I would tell [Transport Canada] to certainly look at this closely and to consider whether further rules or regulations are required to enable us to ensure the safety of the flying public.”
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