By Hugh McPhail, Q.C.
This week, in the latest case on drug/alcohol testing, the New Brunswick Court of Appeal issued a decision upholding random alcohol testing at an Irving pulp and paper mill. Any time a Court of Appeal decides an issue it is accorded considerable weight across the country.
The Court concluded that the employer’s and employees’ rights are reasonably balanced when random alcohol testing is introduced to a workplace that is inherently dangerous. Testing is done by breath analyzer and it only applies to employees holding safety-sensitive positions. The decision is of more weight because it involved the quashing of an arbitration decision, and not just the upholding of a decision because it was not proven to be unreasonable. The arbitrator had said that proof of an alcohol problem in the workplace was required because the site was not ultra-safety-sensitive. That division between degrees of safety-sensitivity was rejected by the Court of Appeal.
The case does not deal with drug testing. Random drug-testing continues to be a more controversial topic because a drug test will only rarely indicate impairment.