The Supreme Court of Canada, in a 6-3 majority decision,
recently upheld an arbitrator's determination that the random
alcohol testing component of an employer's drug and alcohol
testing policy was unreasonable. The employer, Irving Pulp &
Paper Ltd., which operates a unionized kraft mill, had unilaterally
implemented a drug and alcohol testing policy for employees in
safety sensitive positions. As part of the policy, 10% of employees
in safety sensitive positions would be randomly selected for
unannounced breathalyser testing each year. The Union grieved this
aspect of the policy. The arbitration board upheld the grievance
because there was no evidence of a significant problem with alcohol
use in the workplace.
The majority of the Court noted that the arbitral jurisprudence
had developed a "balancing of interests" proportionality
approach to drug and alcohol testing, weighing the safety interests
of the employer with the privacy interests of employees. The
majority stated that the dangerous nature of a workplace alone is
not an automatic justification for random testing. Rather, the fact
that a workplace is dangerous is what triggers the balancing of
interests exercise. In order to justify random testing, the
majority held that an employer must provide evidence of a problem
with substance abuse in the workplace.
In this case, the Court agreed with the arbitration board's
determination that 8 documented incidents of alcohol consumption or
impairment at the mill over a 15 year period, with none connected
to accidents, injuries or near misses, did not reflect a problem
with workplace alcohol use. The majority also referred to the
board's finding that, over the course of nearly two years of
testing following the introduction of the policy, no employee had
tested positive on either a random test or a test for reasonable
cause as demonstrating the lack of a problem with workplace alcohol
The majority of the Court did not close the door on the right of
an employer to impose random testing in a dangerous workplace if it
is a "proportionate response in light of both legitimate
safety concerns and privacy interests". This means that if
employers want to defend a random testing policy, they should focus
on gathering evidence about alcohol and drug use within the
workplace, including observations of employees with alcohol on
their breath, evidence of drugs or alcohol being present on the
worksite, and/or evidence linking drug and alcohol use to workplace
Finally, it must be emphasized that the Court's decision
does not disturb the long-standing arbitral jurisprudence that
permits drug and alcohol testing for employees in safety-sensitive
positions where there is reasonable cause to believe that an
employee was impaired while on duty, as part of an investigation
into a workplace accident or incident, or where an employee is
returning to work after treatment for substance abuse. In the
latter situation, random testing of the employee may be part of the
return to work arrangement.
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