Supreme Court of Canada confirms illegality of random alcohol testing, even in the name of safety.
In a decision released this morning, The Supreme Court of Canada upheld the decision of a New Brunswick labour arbitration board, which struck down Irving Pulp and Paper Ltd mill’s policy requiring random alcohol testing for employees.
The mill had introduced a unilateral randomized alcohol testing policy, which was challenged by a worker who had passed the testing, based on the ground of privacy. The board found in favour of the employee, however the New Brunswick Court of Queen’s Bench and Court of Appeal both found in favour of the employer.
The majority of Supreme Court judges agreed with the labour board, which found that the mill did not have a serious safety problem associated with alcohol, and therefore did not have reasonable grounds for testing.
“In this case, the expected safety gains to the employer were found by the board to range from uncertain to minimal, while the impact on employee privacy was severe,” the court’s decision reads. The judgment stated that employees wishing to put this type of policy into place should not expect it to stand up to a challenge in court.
The decision was split 6-3 and in a lengthy statement, the dissenting judges argued that the decision put too high a burden on employers to justify a random alcohol testing policy, requiring a “significant or serious” problem. The Irving mill had seen just eight cases in 15 years.
“An employer does not have to wait for a serious incident of loss, damage, injury or death to occur before taking action,” the dissenting judges argue. “To require such a causal connection is not only unreasonable, it is patently absurd.”
One added point was that the majority of the court has suggested that there is no different standard for testing for alcohol and testing for drugs, which used to be considered two different levels, Filion Wakely Thorup Angeletti associate Chris Sinal said.
The court did leave a small opening for employers, saying in some “extreme” circumstances there may not be a need for reasonable cause, but did not elaborate on what that situation might look like.
“In most cases for random drug and alcohol testing you’re going to need some kind of reasonable cause and evidence to demonstrate why the risk in the workplace and the need to address it outweighs the privacy interest of the employee,” Sinal said. “The impression before this case was that employers of a hazardous work environment may have a lighter onus to show there is a pre-existing problem but that doesn’t appear to be the case anymore and they are going to have to show some evidence.”
The court didn’t clarify what level of evidence would be required, but it would essentially be a balance of interest so the evidence of a problem and safety risk outweighed the right to privacy.
The case is of particular interest as more companies push for alcohol and drug testing under health and safety policies. Testing is common in parts of Canada, specifically in the west where mining and other industries are influenced by the US, where 50% of industries use randomized testing in the workplace.
Page 2: Alberta group still confident random drug testing is an option.
Nine Alberta energy and construction companies including Suncor, Canadian Natural Resources Limited and Total E&P were taking part in a two-year pilot to develop effective alcohol and drug testing. The Drug and Alcohol Risk Reduction Pilot Project (DARRPP) includes random drug testing, which will begin later this year.
DARRPP administrator Pat Atkins was still optimistic that the organization would succeed in its efforts to introduce random testing to specific companies and industries.
“We see the decision as support what we’re doing. It’s clear that [random testing] can be justifiable in situations where there is inherent risk and evidence of a problem. In our industry we feel both are in place,” Atkins said. “It’s very important to us to keep workers and workplaces safe and we think there are legitimate risks and problems there. There are processes in place for workers to get help and we have a number of companies, contractors and labour organizations on side to move ahead with this.”
The pilot had integrated the principles of human rights and privacy into its policies, Atkins said. She said there was evidence of problems with drugs and alcohol on worksites in Alberta, and the circumstances at the Irving mill were not the same as those in the western province.
Last year Suncor spokesperson Sneh Seetal told HRM Online the company’s “number one priority” was to provide a safe workplace for all employees, contractors and visitors to their sites.
“Drugs and alcohol use is an issue that affects the safety of our people and our workplace posing an unacceptable risk on our worksites,” Seetal said. “We have a comprehensive system including safety initiatives, education, training and support for those who need assistance. Random testing is one of the tools we will use to fulfill our commitment to provide a safe workplace.”
Suncor started its randomized drug and alcohol testing program in October last year, but was stopped by a court injunction.
When can you test employees:
With considerable warning
In 2004, Petro-Canada gave employees at an Alberta site two months’ notice for drug testing, and workers who failed were laid off. The arbitrator found this was reasonable.
After an accident
Assessing a workplace accident can often include drug or alcohol testing, however, be aware as an employer that you have a duty to accommodate any individual with a substance abuse problem.
When there is a demonstrated problem
Especially common with individuals with addiction problems who are being accommodated. An accommodation requirement is often passing random alcohol or drug testing.