On June 14, 2013, the Supreme Court of Canada released a much anticipated decision concerning a unionized employer's right to unilaterally impose random alcohol testing in a dangerous or safety-sensitive workplace.
As a service to our valued clients, we are circulating this summary of the Court's decision and the possible impact that it will have on employers.
Background
Irving Pulp & Paper, Ltd. ("Irving") operates a paper mill in New Brunswick.
Both Irving and the union were in agreement that the mill is a dangerous or safety sensitive workplace. Where the parties disagreed, however, is whether this justified the unilateral imposition of random alcohol testing.
Relying on the management rights clause in the applicable collective agreement, Irving argued that the safety-sensitive nature of the workplace was sufficient to justify the implementation of random alcohol testing. The union took a different view. It argued that this constituted an invasion of privacy that was not justifiable in the absence of evidence to the effect that alcohol was a problem in the workplace.
In the 15 years leading up to the introduction of the random alcohol testing, there had only been eight documented incidents of alcohol consumption or impairment at the mill - and none of these incidents was connected to accidents, injuries or near misses.
Decision
In a 6-3 split decision, the Supreme Court of Canada found in favour of the union.
The Court found that operating in a dangerous or safety-sensitive environment does not, in and of itself, justify random alcohol testing. It is only one consideration in determining whether such testing is appropriate.
In their reasons for judgment, both the majority and minority found that an employer must provide evidence that alcohol has historically been a problem in the workplace. The majority and minority reasons for judgment differ with respect to the extent of the problem that must be demonstrated on the evidence. The majority held that the evidence needs to show a significant problem. The minority, however, held that there need only be evidence of a problem. According to the minority, an employer does not have to wait for a serious workplace incident to occur before taking proactive steps, including random alcohol testing.
What does this decision mean for employers?
- While this case deals solely with random alcohol testing, a number of the principles articulated by the Court will apply to random drug testing as well.
- The Court's decision reinforces the fact that even employers operating in safety sensitive workplaces do not have automatic justification for unilaterally imposing a random testing program with respect to alcohol or drugs.
- The decision also confirms that cases involving random alcohol or drug testing are likely to be decided on a case-by-case basis. It is thus important for employers to be meticulous in documenting any problem with alcohol or drugs in the workplace.
In this case, Irving proffered evidence to the effect that there had been additional incidents involving alcohol in the workplace but that these had not been adequately documented. It is possible that further concrete proof of these incidents could have led to an entirely different result before the Court. In addition to carefully documenting any workplace incident involving alcohol or drugs, an employer considering implementing a random testing program would be wise to document any previous, less intrusive attempt to address a problem with alcohol or drugs in the workplace.
- Employers should remember that this decision of the Court applies only to random alcohol testing and does not alter the law with regard to other kinds of alcohol or drug testing for employees in safety-sensitive positions.
When a workplace is dangerous or safety-sensitive, an employer will still be able to test for alcohol or drugs if there are reasonable grounds to believe that the employee in question was impaired while on duty, where the employee was involved in a workplace accident or incident, or where he or she is subject to testing as the result of a last-chance agreement or monitoring or treatment plan.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.