What We Heard Report – DIS-12-03
Fitness for Duty: Proposals for Strengthening Alcohol and Drug Policy, Programs and Testing
Discussion papers play an important role in the selection and development of the regulatory framework and regulatory program of the Canadian Nuclear Safety Commission (CNSC). They are used to solicit early public feedback on the CNSC's policies or approaches.
The use of discussion papers early in the regulatory process underlines the CNSC's commitment to a transparent consultation process. The CNSC analyzes and considers preliminary feedback when determining the type and nature of requirements and guidance to issue.
Human performance is a key contributor to nuclear power plant safety. Recognizing this, the CNSC requires nuclear power plants to implement and maintain human performance programs. Fitness for duty is one factor that affects human performance. An important element of being fit for duty is being free from the influence of alcohol, illicit drugs or performance-altering medication while at work.
Discussion paper DIS-12-03, Fitness for Duty: Proposals for Strengthening Alcohol and Drug Policy, Programs and Testing, presented the CNSC's broad view of fitness for duty and included specific proposals for alcohol and drug policy, programs and testing requirements for Canada's nuclear power plant licensees. The objective of these proposals was to clarify existing fitness-for-duty requirements as they relate to substance use. Although the proposals were limited to nuclear power plants, the CNSC was open to feedback on expanding the scope to include other licensed nuclear facilities.
This report summarizes the results of the CNSC's preliminary public consultation on the proposals for alcohol and drug policy, programs and testing requirements.
DIS-12-03 was posted on the CNSC website, on April 10, 2012 for a 120-day consultation period (April 10 to August 7, 2012). At the request of stakeholders, this period was extended to August 31, 2012.
Following the consultation period, submissions from stakeholders were posted on the CNSC's website for 28 days for feedback on the comments received.
The CNSC received 42 written submissions.
Summary of stakeholder comments
Overall, there is broad support for the proposal's policy and program elements related to keeping the workplace alcohol- and drug-free. Support was shown for the CNSC's comprehensive view of fitness for duty, including enhancements to regulatory oversight in the areas of fatigue, hours of work and related shift schedules.
With regard to alcohol and drug testing, a moderate level of support was shown for a restricted set of testing circumstances where there are reasonable grounds in post-incident or follow-up situations. A large proportion of respondents expressed strong concern that the proposed requirement for random alcohol and drug testing of all workers with unescorted access is overly intrusive and may infringe on the privacy rights of workers. It was suggested that limiting testing to a smaller group of employees who work in safety-sensitive positions would be consistent with jurisprudence. The following is a list of some of the more detailed comments received by stakeholders.
Support for fitness for duty
There is general agreement that workers should be fit for duty to ensure that safety is maintained in Canada's nuclear facilities.
Additional measures for fitness for duty
Support was shown for clarifying the CNSC's regulatory requirements, specifically those related to keeping the workplace alcohol- and drug-free. Several comments expressed concern with the discussion paper's limited focus on alcohol and drugs, and recommended that the CNSC also consider the breadth of fitness for duty, including emotional distress, fatigue, hours of work and related shift schedules.
Scope of licensees to be covered
There is limited support to expand the proposed requirements beyond nuclear power plants and include other nuclear facilities.
Alcohol and drug policy and programs
Overall, there is broad support for the proposal's policy and program elements related to keeping the workplace alcohol- and drug-free. Some comments referred to licensees' documentation, suggesting that many licensees already have many of the proposed provisions in place. The idea of enhancing training and education on substance abuse was welcomed.
Expanding the program to include testing
There was support for the proposal to require some substance testing. However, some comments stated that testing would need to be restricted to ensure that it did not infringe on the various human and privacy rights of workers.
Population to be tested
The vast majority of respondents were concerned about the proposed requirement that all workers with unescorted access would be subject to substance testing. There were comments that limiting testing to a smaller group of employees who work in safety-sensitive positions would be consistent with current jurisprudence. Certain comments suggested that the determination of which positions are safety-sensitive should be done on a case-by-case basis and conducted jointly by industry, labour representatives and the CNSC.
Types of testing
The level of support varied for pre-placement, for-cause, follow-up, and random testing. The following highlights some of the more prominent testing themes that emerged:
- Random testing
The most significant concern was that the proposed requirement for random alcohol and drug testing would be overly intrusive on the privacy rights of workers. Those opposed to random testing cited various applicable sections of the Canadian Charter of Human Rights and Freedoms (sections 7, 8 and 15), the Canadian Human Rights Act, as well as various privacy legislation and relevant jurisprudence.
Some respondents deemed that random alcohol testing, but not random drug testing, was permissible as long as it could be demonstrated there was evidence of a serious problem. Most of those who commented on random drug testing were opposed because the testing is able to determine only past exposure to an illicit substance and cannot measure the current level of impairment.
Some objections to pre-placement testing (pre-hire, or as a result of a transfer) were noted. It was suggested that this could represent an unreasonable infringement on workers' privacy rights.
- For-cause testing and follow-up
Support was shown for a restricted set of testing where there are reasonable grounds in post-incident or follow-up situations. Although several comments suggested that the CNSC should not impose the requirement to conduct substance testing on workers, there was acknowledgement that there was no legal basis for opposition under these restricted circumstances.
List of drugs to be considered
There was some support for the proposal that the CNSC develop a list of drugs to be tested, along with their various cut-off levels/thresholds. It was suggested that if the CNSC takes on this role it should obtain the expertise of a forensic toxicologist to ensure technical matters are addressed appropriately.
Respondents advised the CNSC to carefully consider the type of regulatory instrument (regulatory document vs. regulations) that would establish requirements for substance testing.
It was noted that the Supreme Court of Canada would be hearing a case (Communications, Energy and Paperworkers' Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.  SCC 34) on random alcohol testing, and that the CNSC should await the decision before determining whether to include random testing in its overall approach. (Since the comment period, the Supreme Court has ruled on this case  SCC 34.)
In determining its approach to clarifying fitness for duty – particularly alcohol and drug requirements – the CNSC will consider all comments received during the public consultation on DIS-12-03, Fitness for Duty, Proposals for Strengthening Alcohol and Drug Policy, Programs and Testing. Furthermore, the Supreme Court of Canada's recent decision  SCC 34 in the Communications, Energy and Paperworkers' Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.  SCC 34 case on mandatory workplace alcohol testing will be considered.
At this time, it is the CNSC's intention to begin work on a regulatory document that will define and document the roles and responsibilities of those involved with managing worker fitness for duty, including measures to be taken by the licensees to ensure that workers are physically, physiologically and psychologically fit to work.
With respect to drug and alcohol testing, the CNSC intends to put in place requirements that all Canadian nuclear power plant licensees ensure that workers occupying safety-sensitive positions be alcohol- and drug-free while performing their duties.
The CNSC also intends to specify the list of drugs to be tested along with their various cut-off levels/thresholds. The CNSC will obtain the expertise of a forensic toxicologist to ensure technical matters are addressed appropriately.
The CNSC will provide opportunities for further public consultation, before publishing any documents clarifying regulatory requirements and guidance on fitness for duty programs, including alcohol and drug policy, programs and testing.
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