June 28, 2013 - The Supreme Court of Canada (the
"SCC") recently addressed when, if ever, an employer can
unilaterally impose random alcohol testing in the workplace. The
answer, seemingly, is almost never.
In Communications, Energy and Paperworkers Union of Canada,
Local 30 v. Irving Pulp & Paper, 2013 SCC 34, the employer
imposed drug and alcohol testing for employees holding positions
that Irving designated as "safety sensitive." This new
policy included universal random alcohol testing for 10% of the
safety sensitive employees over the course of the year. The union
challenged such random testing as unreasonable.
On the road to the Supreme Court of Canada, the New Brunswick
Labour and Employment Board and the New Brunswick Courts disagreed.
The Board allowed the grievance, finding that the policy could not
be justified, as the minimal safety gains it was likely to produce
did not offset the invasion of privacy created by random alcohol
testing. The Courts overturned the Board's decision and held
that an employer can unilaterally impose random alcohol testing in
any dangerous workplace without having to show reasonable
The SCC found the policy to be unreasonable and concluded that
alcohol testing is only reasonable in a limited set of
The SCC held that generally, employers are entitled to test
individual employees who occupy safety sensitive positions for
alcohol and drugs only:
if there is reasonable cause to believe the employee is impaired
while on duty;
where the employee has been directly involved in a workplace
accident or significant incident; or
where the employee is returning to work after treatment for
With respect to random testing outside of the above
circumstances, danger in the workplace is not an automatic
justification for random alcohol testing with disciplinary
consequences. It is only a factor in determining whether random
testing is reasonable. An employer must also provide evidence of a
substantial problem with substance abuse in the workplace.
In this case, the SCC held that eight incidents over a 15-year
period was not deemed sufficient to constitute a significant enough
problem to merit universal, random testing. Further, in the 22
months which passed since the policy was implemented, no positive
tests were found.
Despite the above, the SCC was also clear that random alcohol
(and drug) testing was still permissible if the union and employer
agree. Given this decision, however, we expect few unions to agree
in the future. Employers will have to deal with non-unionized
workplaces and managers differently. In those cases, imposing
unreasonable random testing may raise issues of constructive
dismissal, privacy and human rights.
As a result of the decision, it leaves open only narrow
circumstances in which random alcohol testing will be allowed. A
dangerous workplace alone is not enough. Employers will probably
have to have evidence of a substantial alcohol or drug problem in
the workplace. Otherwise, employers will probably be restricted to
targeted testing according to the individual circumstances listed
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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