Death Knell for Random Alcohol Testing in the Workplace? Not Quite

Written by on July 25, 2013 in Employment Law Blog
Supreme Court of Canada

On June 14, 2013, the Supreme Court of Canada weighed in on the issue of random alcohol testing in the workplace, ultimately deciding in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (“Irving”) that the decision to strike down the employer’s random alcohol testing policy was reasonable.

In Irving, the employer, who operated a paper mill, unilaterally implemented an alcohol and drug use policy for unionized employees which included mandatory random alcohol testing of 10% of employees in safety sensitive positions annually by way of breathalyser. A positive test for alcohol would result in disciplinary action, including dismissal. The union grieved the matter to the arbitration board, who determined that the random testing policy was not justified as there was no evidence of an existing problem with alcohol in the workplace. In this situation, the board determined that the harm to employees, due to the loss of privacy, outweighed the minimal safety benefits afforded by the random testing. The employer sought judicial review of the decision.

In rendering its decision, the Supreme Court of Canada discussed the established principles that in the unionized environment, a rule or policy that is unilaterally imposed by an employer and is not agreed to by the union must ultimately be consistent with the collective agreement and be reasonable. A careful balancing of interests must be undertaken to determine whether an employer can unilaterally impose a rule or policy that carries with it disciplinary consequences to ensure that the need for the rule or policy really does outweigh the infringement of the employees’ rights to privacy. Accordingly, the Court acknowledged that while a dangerous workplace is a relevant factor in the overall analysis, it is not the determinative factor and is rather one consideration among many. The Court determined that the arbitration board’s findings that the impact on employee privacy of the mandatory alcohol testing policy grossly outweighed the potential safety benefits along with the fact that the employer was unable to demonstrate the required safety concerns to justify the random alcohol testing, were reasonable. Accordingly, the arbitration board’s decision striking the mandatory alcohol testing policy was upheld.

Although the Supreme Court of Canada’s decision was made within the context of a unionized environment, the ramifications of this decision are equally relevant to non-unionized workplaces.

Impact of Decision on Employers

In light of the Irving decision, employers should have their existing drug and alcohol policies reviewed to ensure that these policies are in compliance with current law. While random alcohol and drug testing may still be permitted, the scope has been drastically reduced. Employers will need to establish that a substantial problem with substance abuse exists in the workplace to justify a random testing policy, including establishing that the safety benefits will outweigh the damage caused by the infringement of employees’ privacy rights. The level of danger in the workplace is one factor to be considered, but will not be enough on its own for employers to demonstrate the reasonability of the random testing policy. Testing of individual employees is still permitted for employees occupying safety sensitive positions where one of the following scenarios exists: there is reasonable cause to believe the employee is impaired while on duty; the employee has been directly involved in a workplace accident or incident; or if the employee is returning to work following treatment for substance abuse.

Impact of Decision on Employees

The Irving decision strengthens employees’ rights to privacy in the workplace and limits the situations in which random alcohol and drug testing can be performed and required by employers. Employees should not feel pressured to submit to random testing and should not fear disciplinary action from their employers as a result. Employees may still be required to participate in testing in specific circumstances as outlined above. While a negative inference may be still be drawn by an employer if an employee refuses to submit to random testing, unless certain specific criteria are met, there should be no disciplinary action taken by the employer against the employee in that situation.

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