Thinking about a random alcohol testing program? Think again
August 1, 2013 by Matthew Swanson and Brandon Hillis
One of the most controversial issues in workplace law is an employer’s right to implement drug or alcohol testing programs. Recently, the Supreme Court of Canada released its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., a case that provides clarity to employers on some of the obstacles to implementing such programs.
At issue in the case of Irving Pulp & Paper was the appropriateness of a unilaterally-implemented random alcohol testing
program. Under its terms, 10 per cent of employees in safety-sensitive positions would be randomly selected for unannounced, annual breathalyzer testing. A positive test would attract significant disciplinary consequences. In 2006, shortly after it was implemented, the Union launched a grievance in respect of this program.
At the centre of almost all disputes concerning such programs, including this one, there is a struggle to find an appropriate balance between an employer’s interest in maintaining a safe and healthy workplace and employees’ privacy and human rights. Courts, tribunals and arbitrators alike, have generally been receptive to the need to protect employee rights and have placed limitations on the ability of employers to implement these programs.
In this case, the Union asserted that Irving’s program breached the privacy rights of its members and could not be justified as a reasonable exercise of Irving’s right under the collective agreement to unilaterally implement rules with disciplinary consequences.
While recognizing that the Irving mill was a dangerous workplace, the Supreme Court of Canada determined that this factor, in and of itself, was inadequate justification for the program: [The] dangerousness of a workplace…has never been found to be an automatic justification for the imposition of random testing with consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.
With only eight documented incidents of impairment in 15 years, the Supreme Court of Canada concluded that there was insufficient evidence of an enhanced safety risk. The safety gains were “minimal at best,” and, on balance, could not justify the intrusion upon the privacy of Irving’s employees.
To uphold a program of random alcohol testing for employees occupying safety-sensitive positions, the Supreme Court of Canada has indicated that an employer must establish (1) that the workplace is dangerous and (2) that there are enhanced safety risks, such as a general problem with substance abuse in the workplace.
It is important to note that this case concerned a policy grievance based on a desire to maintain the privacy rights of Irving’s employees, and did not address human rights considerations. In other situations, for example, individual grievances or complaints of non-unionized employees, such considerations would likely dominate the discussion. Human rights legislation prevents employers from discriminating at all stages of employment (including the hiring stage) against employees on the basis of, among other things, mental or physical disability. Substance addiction has long been recognized as a form of disability.
It is also important to note that this case took place in the context of a unionized environment, and considered factors unique to such environments.
Proceed with caution
Implementing a workplace drug or alcohol testing program is fraught with risk. Before implementing any such program, whether in a unionized or non-unionized workplace, employers should give careful consideration to privacy and human rights issues and ensure that their program is reasonable and justifiable. If possible, in unionized workplaces, employers should attempt to negotiate such policies with the union, in which case many of the concerns set out above may be limited.
This article is provided for general information and may not be relied upon as legal advice. Matthew Swanson and Brandon Hillis are lawyers at Borden Ladner Gervais LLP. Send comments to email@example.com.
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