June 14, 2013
By Kathleen Garbutt, Vicki Giles and Tom Ross
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 testing.
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 circumstances.
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 dangerous workplaces.
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 are necessary.
Click here for other McLennan Ross reports on earlier decisions in this case.