Alcohol and drug testing of employees remains controversial and subject to numerous legal challenges. On December 28, 2007, the Alberta Court of Appeal upheld an employer's right to perform mandatory pre-employment alcohol and drug screening for safety-sensitive positions. In contrast, on December 6, 2007, only a few weeks earlier, the Québec Court of Appeal struck down the portion of an arbitrator's award that would have permitted an employer to conduct random alcohol and drug testing of its employees who work in safety-sensitive positions. The court held that such testing is contrary to Québec's Charter of Human Rights and Freedoms (the Charter).
The Facts
In June 2004, Goodyear Canada Inc. provided its union with a "Policy regarding Alcohol Consumption and Use of Drugs and Medication." This policy was to be put into effect that same month at Goodyear's tire plant in Valleyfield, Québec. The union filed a grievance alleging that the policy contravened the collective agreement, the Civil Code of Québec and the Charter.
The arbitrator's mandate was clear: tell the parties whether the policy was legal and, if it was not, determine the acceptable terms for such a policy.
In his award, arbitrator Denis Tremblay set out a modified policy for alcohol and drug testing by means of hair, urine or breath analysis. The modified policy would apply (i) to job applicants and new employees; (ii) to situations where there is reasonable and probable cause to believe that an individual is under the influence of drugs and alcohol; (iii) following an accident; (iv) in a random, unannounced manner for employees working in "high risk positions"; and finally (v) following an absence related to alcohol consumption or drug use.
Asserting that the modified policy contravened the Charter, the union applied unsuccessfully to the Québec Superior Court to set aside the arbitrator's award. The union then brought the matter to the Court of Appeal.
The Québec Court of Appeal
Before the Court of Appeal, the union did not contest the fact that Goodyear could test their employees when there is reasonable and probable cause to believe that they are working under the influence of either alcohol or drugs. The union argued, however, that the Superior Court judge had erred when he stated that random alcohol and drug testing is not an excessive intrusion on privacy and other individual rights, even for safety-sensitive positions.
In response, Goodyear relied on Section 9.1 of the Charter, which provides that:
In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.
In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by the law.
It argued that legitimate safety considerations justify the intrusion involved in random alcohol and drug testing, particularly for employees working in high-risk positions.
The Court of Appeal allowed the union's appeal, striking down the clause in the modified policy that would have allowed random testing of employees in safety-sensitive positions. It ruled that random alcohol and drug testing of these employees does not minimally impair their human rights.
The Court of Appeal found that the results of these tests could reveal consumption that occurs in the weeks preceding analysis of the sample. Thus, if this method of random testing were allowed, Goodyear could unreasonably intrude into the private lives of its employees. Further, these samples could reveal confidential information about employees' state of health.
The court also stated that, despite Goodyear's poor record with respect to work-related accidents, no direct link existed between this situation and the consumption of alcohol or drugs in the workplace.
What Does This Mean for Employers?
- As a general rule, random alcohol and drug testing for
Québec employees working in safety-sensitive positions
is prohibited.
- The Court of Appeal arguably leaves open the possibility
that random alcohol and drug testing may be justified if an
employer can establish a direct link between a pattern of
work-related accidents and alcohol or drug consumption in the
workplace.
In Alberta, British Columbia, Ontario and Québec, alcohol and drug testing of individuals in safety-sensitive or high-risk positions remains contentious and subject to challenge. For employers in Québec, it will now take very specific circumstances to get around the application of this Court of Appeal decision. Absent such circumstances, random alcohol and drug testing for employees working in safety-sensitive positions is prohibited in Québec.
Footnotes:
1 For an article on this decision, see : http://www.mccarthy.ca/article_detail.aspx?id=3813.
2 Section locale 143 du Syndicat canadien des communications, de l'énergie et du papier v. Goodyear Canada inc.
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