Canada: Employer’s Random Alcohol Testing Policy Constitutes Unreasonable Invasion Of Employees’ Rights To Privacy

An employee's right to ensure workplace safety versus an employee's right to privacy – these competing rights have been present in the workplace for many years. On one hand, employers must be able to adopt policies to protect their workforce and abide by statutory health and safety obligations. On the other hand, employees expect that they will not be subject to intrusive policies that unreasonably infringe on their privacy expectations.

In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, the Supreme Court of Canada (SCC) recently weighed in on how to balance these rights in the context of an employer implementing a drug and alcohol testing policy. In this case, a majority of the SCC favoured employees' privacy rights. Key in the majority's decision was that the employer could not demonstrate the necessary safety concerns to justify the inroads the random alcohol testing component of its policy made on employee privacy. As such, the testing was found to be unreasonable, in excess of management's right to implement policies impacting the workforce and, therefore, unlawful.

Background

In 2006, Irving Pulp & Paper, Limited unilaterally adopted a Drug and Alcohol Policy at its Saint John, New Brunswick paper mill, a component of which entailed random alcohol (but not drug) testing via breathalyser of employees holding safety-sensitive positions (the Policy). Employee tests revealing a blood alcohol level concentration greater than 0.04% would warrant disciplinary action determined on a case-by case basis, up to and including termination. Over a 15-year period, Irving had documented 8 incidents of alcohol consumption or impairment in the workplace. Fortunately, there had been no accidents, injuries or near misses due to intoxication.

The union grieved the random alcohol testing component of the Policy as an unreasonable exercise of management rights. The union did not grieve the rest of the Policy, which included drug and alcohol testing in the event that the employer had reasonable cause to believe an employee was impaired while on duty, when an employee was involved in a workplace incident and for the purpose of monitoring an employee's return to work following voluntary treatment for substance abuse.

Although it was undisputed that the workplace was a dangerous one, the Board of Arbitration (who first heard the case) determined that the random alcohol testing was unreasonable. The Board concluded that, on the evidence, Irving had not demonstrated "any significant degree of incremental safety risk attributable to employee alcohol use" and that the harm to employee privacy and security of the person far exceeded the "limited" benefit arising from the random alcohol testing. As such, the need for the testing could not be justified.

On judicial review, the Board's decision was set aside as unreasonable due to the dangerous nature of the workplace. The appeal was dismissed by the New Brunswick Court of Appeal, but was further appealed to the SCC.

The SCC's Ruling

The Majority

In a ruling that divided the SCC 6 to 3, the majority applied a reasonableness standard of review to the Board's decision, concluded that the decision had been a reasonable one and, therefore, upheld it.

The majority discussed the scope of an employer's unilateral rule-making authority under a collective agreement, citing with approval the well-established KVP test, which provides that "any rule or policy unilaterally imposed by an employer and not subsequently agreed to by the union, must be consistent with the collective agreement and be reasonable". The majority agreed with the Board that in the absence of satisfactory evidence of enhanced safety risks due to alcohol use – such as workplace accidents or a general problem with substance abuse among employees – the mere fact that a workplace is inherently dangerous cannot (on its own) justify the significant intrusion that random alcohol testing has on employee privacy. The majority concluded that the Board's decision had been reasonable and allowed the appeal.

The Dissent

The dissenting opinion is worthy of comment.

The dissent, too, adopted a reasonableness standard of review but took issue with the majority's approval of the evidentiary standard adopted by the Board, which was more stringent than that used in previous arbitration cases on the reasonableness of an employer's random alcohol testing policy.

The dissent noted that there are important differences in the principles adopted in the arbitral case law with respect to random alcohol testing policies, random drug testing policies and policies that provide for reasonable cause drug and alcohol testing. The consensus regarding random alcohol testing policies in the arbitral case law, the dissent asserted, is that the employer must "demonstrate evidence of an alcohol problem in the workplace" – the requirement is not, as the Board had applied (and which the majority adopted), that the employer provide evidence of a "serious" or "significant problem" related to an actual alcohol-related experience of accident, injury or near-miss in the workplace.

Since the Board departed from the arbitral consensus without any explanation of its reasons for doing so, the dissent argued that the Board's decision fell outside a reasonable range of outcomes and therefore ought not to have been followed.

Key Takeaways

While Irving does not produce an ideal result for employers who understandably see the safety and deterrence benefits that random alcohol testing provides, it is important to stress that Canada's highest court has not prohibited such testing in its entirety. Rather, employers with dangerous operations who wish to unilaterally impose such a policy must adequately justify and substantiate the policy's reasonableness through verifiable evidence that the workplace in question has problems with alcohol use. Testing where there is reasonable cause, post-incident testing and testing as part of a return to work generally remains permissible at Irving.

Nonetheless, the SCC's decision leaves uncertainty regarding the quantum and nature of evidence that will be satisfactory to establish the reasonableness of a random alcohol testing policy. In light of such uncertainty, employers should continue to carefully document drug and alcohol-related incidents (and, indeed, all safety incidents) in the workplace and seek union consensus where possible. While we do not believe the SCC expects an actual serious safety incident to arise before a random alcohol policy will be reasonable, employers would certainly have preferred that the following passage from the dissent carried the day:

...to require that an employer tie alcohol use to actual incidents at the mill... is not only unreasonable, it is patently absurd. The arbitral cases recognize that evidence of alcohol use at an inherently dangerous facility such as the Irving mill — where the impact of a catastrophic failure could extend well beyond the safety of workers — is "a problem" enough.

To view the original article, please click here.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions