Drug and alcohol testing presents a minefield of legal issues
for employers, particularly in the area of random testing. The
eagerly awaited Irving Pulp and Paper Ltd. decision dealing with
random alcohol testing was released today by the Supreme Court of
Canada. While many employers were hoping the Court would give them
the green light to automatically impose random alcohol testing in
safety-sensitive environments, the Court instead reinforced
arbitral jurisprudence which limits the circumstances in which
random testing can be used.
The Court held that, absent extraordinary circumstances, an
employer may not unilaterally impose a random alcohol testing
policy on all of its employees, even where the work is dangerous.
Extraordinary circumstances include situations where alcohol use is
a pervasive problem in the workplace and the employer can provide
evidence to establish this.
The facts of the case were that Irving unilaterally implemented
random alcohol testing in a paper mill, which was accepted to be a
dangerous workplace. Under the employer's policy, each year 10%
of employees in safety-sensitive positions were to be randomly
selected for unannounced breathalyser testing. The arbitration
board allowed a union grievance, finding that the random testing
policy was unjustified because of the absence of evidence of an
existing problem with alcohol use in the workplace. The New
Brunswick Courts overturned the arbitration award on the basis that
random alcohol testing was reasonable given the dangerous nature of
the workplace. These Courts held it was not reasonable to require a
history of accidents in a dangerous workplace where a potential for
catastrophe existed in order to justify a policy for random alcohol
The Supreme Court has now overturned the New Brunswick Court of
Appeal and reinstated the original arbitration board's decision
which found the requirement to submit to random breathalyzer
testing in the drug and alcohol policy was unreasonable. The Court
spoke to the importance of striking a balance between
workplace/public safety and employee privacy and dignity. It held
that whether a workplace is dangerous, although a relevant
consideration, does not automatically allow an employer to randomly
test all employees. Rather, testing should be confined to
situations where there are reasonable grounds to believe that the
employee was impaired while on duty, where the employee was
directly involved in a workplace accident or significant incident,
where the employee returns to work after treatment for substance
abuse, or where there is evidence of a serious problem with alcohol
in the workplace.
This decision does not prevent employers from including
provisions which require random drug and alcohol testing in
collective agreements when the union agrees. Employers are
precluded from unilaterally imposing such a policy as part of their
general management rights unless there are extraordinary
The Court's decision is a significant blow to random drug
and alcohol testing and to management rights. It is disappointing
that the Court restricted the application of management rights with
respect to random alcohol testing, particularly since alcohol tests
measure impairment and impairment is a significant safety risk in
It goes without saying that employers must continue to tread
carefully when implementing drug and alcohol testing programs. This
decision has confirmed that decision makers must continue to weigh
employers' safety concerns against employees' rights to
privacy in evaluating any policy and that employers who wish to
impose random testing polices must come armed with evidence of
pre-existing problems if they wish to convince decision makers they
Click here for other McLennan Ross reports on earlier decisions
in this case.
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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