Random drug and alcohol testing in the workplace is a safety
issue that continues to test the boundaries of privacy rights of
employees. There are two current cases that will help to clarify
the current law with respect to this issue.
Irving Pulp & Paper Ltd. operates a paper mill in St. John,
New Brunswick. Irving introduced a policy that allowed for random
alcohol testing for employees in safety sensitive positions at the
paper mill. The tests were done with a breathalyzer. The employees
tested were selected by an off-site computer that randomly chose
10% of those in safety sensitive positions in any 12-month period.
An Irving employee who was in a safety sensitive position was
randomly tested. He grieved on the basis that the testing infringed
on his right to privacy. The case went to arbitration and was
ultimately heard by the New Brunswick Court of Appeal, which
decided that once a workplace is found to be inherently dangerous,
as long as the testing is minimally intrusive and only applies to
those in safety sensitive positions, random alcohol testing can be
justified. This decision was appealed to the Supreme Court of
Canada and the appeal was heard on December 7, 2012. We expect that
the Supreme Court decision will provide guidance on when random
drug and alcohol testing in safety sensitive positions is a
permitted intrusion on the employee's right to privacy.
In Alberta, Suncor Energy introduced a random drug and alcohol
testing policy for employees at its oilsands operations in Fort
McMurray. Under this policy, approximately 85% of union members
working at the Suncor site would be subject to random testing. The
employees who were selected would have to provide urine samples for
testing. The union grieved on the basis that the proposed testing
was an unreasonable intrusion on the privacy rights of the
employees. The union obtained an injunction from the Alberta Court
of Queen’s Bench (subsequently upheld by the Alberta Court of
Appeal) prohibiting Suncor from implementing its drug and alcohol
testing policy before the grievance is resolved by arbitration.
It will be interesting to see what justifications for random
alcohol and drug testing the arbitrator will consider sufficient to
outweigh privacy concerns. Suncor led evidence in court that in 12
years it had seven fatalities, with three of the deceased employees
having been under the influence of drugs or alcohol at the time of
their deaths. Despite that evidence, the Court of Appeal decided
that there was no suggestion of immediate peril caused by
wide-ranging drug or alcohol use, or significant risk of loss by
accident at the Suncor site, and that the balance of convenience
did not favour implementing the more intrusive new policy before an
arbitrator was able to make a ruling.
Random drug and alcohol testing for safety sensitive positions
is well-established in the United States. These decisions, setting
out the proper tests when privacy rights and safety concerns
collide, will have a significant impact on whether similar drug and
alcohol testing will be able to be widely used in Canada.
As these decisions will be made soon, the best approach for
employers is to wait until the Supreme Court of Canada makes its
decision in Irving and an arbitrator makes a decision in
Suncor before changing their drug and alcohol testing
policies, or creating new drug and alcohol testing policies.
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.
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