Supreme Court random drug, alcohol decision: implications for employers

Jul 02, 2013

Drug test formA Supreme Court of Canada decision on mandatory, random alcohol testing in dangerous workplaces places the onus on employers to first demonstrate a substance abuse problem exists.

In a long-anticipated decision, the Supreme Court found that Irving Pulp & Paper, Ltd. was not justified in conducting mandatory, random alcohol testing of workers in a dangerous workplace "given the absence of evidence of an existing problem."

This marks the first decision from Canada's highest court on random alcohol and drug testing in the workplace, and has clear implications for workplaces concerned about the health and safety impact of substance abuse. As an indicator of interest in the decision, more than 15 organizations representing major Canadian employers and industry sectors had registered as intervenors.

The back story

In 2006, Irving's Saint John, New Brunswick kraft paper mill unilaterally implemented a policy imposing random, mandatory alcohol and drug testing of workers in positions designated "safety sensitive." Irving adopted the policy under the management rights clause of the collective agreement rather than negotiate it with the union, Communications, Energy and Paperworkers Union of Canada.

Under the policy, 10% of designated employees would be randomly selected for testing every year. Anyone showing a blood alcohol concentration greater than 0.04% would be subject to disciplinary action, including dismissal.

The same year the mill introduced the policy, the union filed a grievance on behalf of a worker who had been randomly selected for testing. The worker had not had a drink since 1979, and his Breathalyzer test showed a blood alcohol level of zero. The grievance challenged only the random alcohol testing aspect of the policy.

The issue with random drug testing

The purpose of random testing is to reduce the risk of incidents and injuries caused by alcohol and drug use. The challenge for workplaces is how to keep workers safe while respecting their right to privacy.

The Canadian Human Rights Commission generally considers random testing of workers acceptable if the workers are in "safety-sensitive" positions. The commission defines a safety-sensitive position as "one in which incapacity due to drug or alcohol impairment could result in direct and significant risk of injury to the employee, others or the environment."

The commission considers random drug testing unacceptable if there is no direct and significant risk of injury. In this instance, the commission would consider the testing as discriminatory, leaving testing programs open to legal challenges. For example, the Canadian Human Rights Act prohibits discrimination on the basis of disability and perceived disability, which includes having a previous or existing dependence on alcohol or a drug but excludes casual or recreational use.

In the case at hand, Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., the Supreme Court weighed the employer’s interest in random alcohol testing as a workplace safety measure against the harm to the privacy interests of the employees. The court concluded that the random testing policy was unjustified because of insufficient evidence of an existing problem with alcohol use in the workplace.

Evidence presented earlier indicates that the mill had documented only eight incidents of alcohol consumption or impairment at the workplace over 15 years prior to introducing the policy. Nor were there any incidents, injuries or near misses connected to alcohol use. As of December 2008, when the grievance was heard, the testing policy had already been in effect for 22 months but no employee had tested positive on either a random test or a test for reasonable cause.

Implications for workplaces

Published commentary by legal experts and others offers input on a number of aspects. For example:

  • conduct mandatory random alcohol and drug testing only if
    • the workplace is recognized to be dangerous
    • the affected employees work in designated safety-sensitive positions
    • there is evidence of a substance abuse problem.

  • conduct for-cause alcohol and drug testing of workers in safety-sensitive jobs only where
    • the employer has reasonable cause to believe the worker is impaired while on duty
    • the employer has reasonable cause to believe impairment was a factor in a post-incident or near miss situation, and
    • the worker is subject to testing as part of a rehabilitation program.

  • If invoking a policy under the management rights clause of a collective agreement, ensure the policy is reasonable and consistent with the collective agreement. In the Supreme Court decision, the majority notes, "the employer had not demonstrated the requisite safety concerns that would justify universal random testing. As a result, the employer exceeded the scope of its rights under the collective agreement."

  • In any policy, include reasonable accommodation for workers with substance abuse problems.

  • When negotiating a collective agreement, workplace parties are free to negotiate their own rules of drug and alcohol testing.

  • If in doubt about any aspect of a policy, seek specialized assistance.

  • Consider alternatives to mitigate the risk of injury and other forms of loss, such as
    • design improvements to equipment and processes that eliminate or reduce risk
    • training programs that increase employees’ knowledge and skills
    • pre-shift performance testing. These tests are straightforward, fair, and focus on job performance.

Another case to watch

Communications, Energy and Paperworkers Union v. Suncor Energy Inc., now before an arbitrator, also involves a grievance over plans to conduct random drug and alcohol testing of employees in safety-sensitive positions. Read recent WSPS coverage of the grievance, and watch for additional coverage in an upcoming issue of WSPS Network News or WSPS Network Magazine.