On June 14, 2013, the Supreme Court of Canada released its decision on random alcohol testing in the workplace in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34. This is the first time the Supreme Court of Canada has considered this issue.
Background
In July 2011, Irving implemented a policy of random alcohol testing of its employees employed in safety sensitive positions at its paper mill operations. The testing was done by breathalyser. A computer randomly chose 10% of employees for testing each year. No cause was required for the test.
The union grieved the implementation of the policy and was successful at arbitration. The arbitration board ruled that Irving had not established a satisfactory safety reason to necessitate a random testing policy. The New Brunswick Court of Queen’s Bench reversed the arbitration decision and upheld the policy, ruling that the random testing was a proportionate response because Irving limited the testing to employees in safety sensitive positions. The New Brunswick Court of Appeal further upheld this ruling also finding that, once a workplace is found to be “inherently dangerous,” the employer does not have to prove the existence of a problem with alcohol in the workplace in order to justify random testing.
The Supreme Court’s Decision
The Supreme Court, however, has ruled that being a dangerous workplace (which the Irving paper mill undoubtedly was) is just one part of the analysis; it is not enough on its own to justify random testing. The employer must also prove that there are enhanced risks, such as a general substance abuse problem in the workplace.
In this case, the Supreme Court ruled that Irving’s evidence of 8 instances of alcohol consumption or impairment at the mill in a 15 year period did not demonstrate a problem with alcohol in the workplace. Further, there was no evidence of any accident, injury, or a near miss related to alcohol use and, in the 22 months since the policy was implemented, not one employee had tested positive for alcohol. The Supreme Court did not accept this latter fact to be proof of a deterrent effect. The Supreme Court agreed with the original arbitration board that Irving’s expected safety gains were “uncertain to minimal, at best” while disproportionately and severely impacting the privacy of its employees. Therefore, Irving’s implementation of a random testing policy was an unreasonable exercise of its management rights under the collective agreement.
Practical Implications for Employers
Although this ruling dealt with a unionized workplace, its implications are generally applicable to the implementation of any workplace testing policy by non-unionized employers. The ruling affirms the long standing principle that random testing of employees is not permissible unless:
- the employee in question works in a safety sensitive position;
- the workplace is demonstrably dangerous;
- and there is evidence of a substance abuse problem in the workplace.
While this case dealt specifically with alcohol testing, it is reasonable to assume that the same principles apply to random drug testing.
It is also important to note that this ruling dealt only with random testing. The Supreme Court specifically reaffirmed that alcohol and drug testing of employees in safety sensitive jobs is generally permissible in the following circumstances:
- Where the employer has reasonable cause to believe the employee is impaired while on duty;
- Post-accident/near miss, where the employer has reasonable cause to believe the incident was related to impairment; and
- Where the employee is subject to testing as part of a rehabilitation program.
Full text of the decision can be read here.
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