On June 14, 2013 the Supreme Court of Canada released its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 and Irving Pulp and Paper, Ltd. holding that the employer’s unilateral implementation of mandatory alcohol testing of its employees was unreasonable. The majority of Canada’s top court agreed with the arbitration board’s decision that the employer could not demonstrate the requisite safety concerns, or problems with workplace alcohol use, that would justify the invasion to employees’ privacy resulting from universal random alcohol testing.
In 2006, without any negotiation with the Union, the employer unilaterally adopted a “Policy on Alcohol and Other Drug Use” at its pulp mill in New Brunswick. At the time of the implementation of the policy there had been eight documented incidents of alcohol consumption or impairment at the workplace over the preceding 15 years; there were no documented cases of accidents, injuries or near misses connected to alcohol use.
The policy contained a universal random alcohol testing component, whereby 10% of employees in safety sensitive positions were to be randomly selected for unannounced breathalyzer testing over the course of a year. A positive test for alcohol could lead to disciplinary action including dismissal. Failure to submit to testing was grounds for immediate dismissal. The Union filed a grievance following the negative test of an employee, challenging only the random (without cause) alcohol testing component of the policy.
The arbitration board concluded that, in the absence of evidence of a workplace problem with alcohol use, the employer was unable to unilaterally implement a policy of random testing in a dangerous workplace. On judicial review, the board’s decision was set aside as unreasonable. The New Brunswick Court of Appeal dismissed the Union’s appeal, holding that employers can unilaterally impose random alcohol testing in any dangerous workplace without having to show reasonable cause.
In setting aside the decision of the Court of Appeal, the majority of the Supreme Court held that arbitrators have used a “balancing of interests” approach in assessing whether a rule or policy that affects employee privacy is reasonable: the nature of the employer’s interests and concerns are weighed against the policy’s impact on employees’ privacy rights. This approach led to a general rejection by arbitrators of unilaterally imposed testing policies except where there had been a problem with workplace substance abuse, and where the employer had exhausted alternative means for dealing with the abuse.
When a workplace is dangerous however, an employer can generally test employees who occupy safety sensitive positions without exhausting alternative means if there is reasonable cause to believe that the employee was impaired while on duty, was directly involved in a workplace accident or significant incident, or was returning to work after treatment for substance abuse.
In the absence of such reasonable cause, the Court held that the dangerousness of the workplace is not determinative, but is merely part of the “balancing” that must be undertaken whereby there must be evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.
The Supreme Court agreed with the arbitration board that the eight documented alcohol-related incidents over the preceding 15 years did not reflect a significant problem with workplace alcohol use. The Court found that breathalyzer testing was a significant inroad on privacy, which clearly outweighed the expected safety gains to the employer, which were seen to be uncertain to minimal at best.
In Our View
The Supreme Court’s decision indicates that employers may implement alcohol and drug testing policies in unionized workplaces where:
- the employer negotiates such a policy with the union;
- the employee occupies a safety-sensitive position in a dangerous workplace and
- there is reasonable cause to believe that the employee was impaired while on duty;
- the employee was involved in a workplace accident or serious incident; or
- the employee was returning to work after treatment for substance abuse;
- there is a demonstrated problem in a dangerous workplace with alcohol or drug abuse that creates a legitimate safety concern and the testing regime that is implemented is a proportionate and reasonable response.
For further information, please contact Kecia Podetz at 613-940-2752.