In a recent 6 – 3 decision, the Supreme Court of Canada has weighed in on a labour relations matter that has been a source of confusion for employers and unions alike for several years – mandatory and random alcohol testing for unionized employees working in safety sensitive positions.
In New Brunswick, Irving Pulp & Paper Limited (“Irving”) operates a paper mill. In 2006 Irving unilaterally adopted a workplace policy which included mandatory and random alcohol testing, by breathalyser, for employees in safety sensitive positions. In any 12 month period, an offsite computer would choose 10% of the names on the employee list for testing.
In this case, an Irving employee and member of the Communication, Energy and Paperworkers Union of Canada (“the Union.”) was tested and his blood alcohol level was zero. (The employee was referred to in the Court ‘s decision as a “teetotaller” having not had a drink in 27 years.) The Union filed a grievance on behalf of the employee challenging only the random alcohol testing of the policy.
The rest of the policy was not challenged. Under it, employees were subjected to mandatory testing if there was reasonable cause to suspect the employee of alcohol or other drug use in the workplace, after direct involvement in a work-related accident or incident, or as part of a monitoring program for any employee returning to work following voluntary treatment for substance abuse. It was also not disputed that the employee occupied a safety sensitive position in what would be considered a dangerous work environment.
However, there were only eight documented cases of alcohol consumption or impairment at the workplace in the 15 years prior to the implementation of the random testing policy, and in the almost two years that Irving undertook the testing, not a single employee had tested positive on either a random test or a test for reasonable cause.
The arbitration board that heard the Union’s grievance concluded that given the lack of evidence of any real risk related to alcohol in this workplace, there was little benefit to the employer in being permitted to continue the random testing policy. The arbitration board weighed the minimal benefit of the policy against the employees’ right to privacy and concluded that the random testing policy was unjustified.
On judicial review, the arbitration board’s decision was set aside as unreasonable because of the inherent dangerousness of the workplace. The New Brunswick Court of Appeal dismissed the Union’s appeal, deciding that no balancing of interests was required in a dangerous workplace, whether it was unionized or not.
The Supreme Court of Canada disagreed with the Court of Appeal and held that the fact that a workplace is found to be dangerous does not automatically give the employer the right to impose random drug testing unilaterally. The dangerousness of the workplace only justifies the testing of particular employees in certain circumstances: 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, or where the employee returns to work after treatment for substance abuse. While the Court did not rule out random testing in a dangerous workplace, it said random testing would only be permitted if it represented a proportionate response in light of both legitimate safety concerns and privacy interests.
The Court noted that unionized employers are always free to negotiate drug and alcohol testing policies (random or otherwise) with the unions who represent their employees.
Irving Pulp & Paper Ltd. v. CEP, Local 30 (2013 SCC 34)
Article written by Jone Metherell