Update on Random Drug Testing in Safety Sensitive Workplace: Supreme Court of Canada Quashes Random Testing

by Leanne E. Standryk

On June 14, 2013, the Supreme Court of Canada released its much awaited decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper Ltd. The Supreme Court of Canada ruled that a unilaterally imposed policy requiring random alcohol testing with disciplinary consequences for either failing to take the test or for a positive test result is unjustified even in a dangerous workplace. The Court ruled that universal random testing will only be permitted where employers can show “evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace”.

Irving Pulp & Paper operates a kraft paper mill in New Brunswick. The mill is considered a dangerous, safety-sensitive work environment and an incident could have significant adverse health and safety, as well as environmental impacts. In 2006, the Employer unilaterally adopted a workplace policy that mandated random alcohol testing of employees holding safety-sensitive positions and which addressed employee privacy concerns. The Policy provided for:

1. Reasonable cause testing where the Company had reasonable cause to suspect alcohol or drug use or possession in violation of the policy;
2. Testing following a significant incident or near miss in the workplace;
3. Random testing as a part of a return to work program after treatment for substance abuse; and
4. Universal random alcohol testing (but not a universal random drug testing component) where 10% of the employees in safety-sensitive positions were to be randomly selected for unannounced breathalyzer testing in any 12-month period and conducted using an off-site computer.

An employee who had not consumed alcohol from 1979 and held a safety sensitive position was randomly tested and, although the test revealed that he had a blood alcohol level of zero, a policy grievance was filed challenging the without-cause aspect of the alcohol testing policy.

Arbitration Decision

The decision of the Arbitration Board determined that the Company had established the mill was a dangerous work environment. The Board considered the evidence and found that there was insufficient evidence to establish the need for random drug testing as a proportional response that balanced health and safety risks with employee privacy rights. The Board found the policy to be unreasonable and unjustified.

New Brunswick Court of Appeal

The decision of the Arbitration Board was quashed on judicial review. The matter proceeded to the New Brunswick Court of Appeal which noted that the arbitral jurisprudence is clear that an employer has a unilateral right to adopt workplace rules, provided those rules fall within the framework of the decision know as Lumber and Sawmill Workers Union, Local 2537. V. KVP Co. In KVP, it was held that the enforceability of workplace policies were dependent upon compliance of six criteria only one of which – reasonableness – was an issue in the Irving case.

The New Brunswick Court of Appeal rejected the Union’s submissions on reasonableness and found that random mandatory alcohol testing in a workplace is justified once the employer establishes the operations are inherently dangerous. Once this determination was made there was no need for the employer to adduce evidence of an existing alcohol problem in the workplace to justify testing.

Supreme Court of Canada

The Supreme Court of Canada in a 6-3 decision reversed the decision of the Court of Appeal. The majority wrote that decision makers ought to apply a “balancing of interests” approach when reviewing alcohol and drug testing policies in a unionized, safety-sensitive workplace. The employer’s safety concerns must be balanced with the employee’s rights to privacy. The Court referred to the decision of Arbitrator Michel Picher in Imperial Oil and C.E.P., Local 900 (“Nanticoke”) which provided the “blueprint” for dealing with drug and alcohol testing in the unionized safety sensitive environment. Arbitrator Picher’s decision focused on drug testing, however, the majority of the Supreme Court in this particular decision noted that the blueprint applied in considering a policy on universal random alcohol testing. The majority of the Supreme Court of Canada endorsed the following principles in determining reasonableness of an Employer’s drug and alcohol testing policy in a safety-sensitive unionized environment:

1. No employee can be subject to random, unannounced alcohol or drug testing, except as part of an agreed rehabilitative program.
2. An employer may require alcohol or drug testing of an individual where the circumstances give the employer reasonable cause to do so.
3. Employers may require alcohol or drug testing following a significant incident, accident or near miss where it may be important to determine the root cause of what occurred.
4. Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have a substance abuse problem. As part of an employee’s rehabilitation and return to work, workplace parties may agree that the employee will undergo random unannounced testing for a period of time.

Of important note, the Court confirmed that universal random alcohol testing will be upheld as reasonable where an employer can demonstrate that there was a general problem with use or abuse of alcohol or drugs in the workplace. Ultimately, the Court upheld the decision of the Arbitration Board that the testing policy was an unreasonable exercise of management rights under the collective agreement.

Interestingly, the Court left open the possibility of universal random testing based on the inherent danger in the workplace, however, indicate that this would only be permissible in “extreme circumstances”.

What does all this mean for Employers?

Employers operating unionized safety sensitive workplaces who wish to implement drug and alcohol policies may continue to provide for some types of alcohol and drug testing: reasonable cause testing; significant incident or near miss testing; and random testing as part of a return to work program after treatment for substance abuse. Policies should incorporate principles of health, safety prevention, accommodation and prevention.

For non-union employers, an Employer is free to exercise its own discretion about worker safety, however, must find guidance in the principles outlined in the Irving decision and must also consider legislation that protects workplace safety and balance that interest with privacy and human rights considerations. Most of the jurisprudence in the non-union workplace has arisen under human rights cases and involve an analysis of whether the policy is discriminatory in nature. This question of whether random testing policies are discriminatory is not quite settled.

As always, Employers are encouraged to seek appropriate legal advice in circumstances involving these issues. Should you have any questions regarding the implications of the Irving decision, please do not hesitate to contact our Labour and Employment Law Department.