Random Alcohol Testing Not Permitted in the Workplace

Communications, Energy and Paperworkers Union of Canada, Local 30 v.  Irving Pulp & Paper Ltd., 2013 SCC 34

On June 14, 2013, the Supreme Court of Canada issued a decision that affirmed the role of alcohol testing in the workplace. The Court upheld the arbitrator’s decision which prohibited the employer’s random alcohol testing policy.

Facts:

In 2006, Irving Pulp and Paper (“Irving”) implemented a workplace policy allowing unannounced, random alcohol tests for employees in safety-sensitive positions at its paper mill. The employees to be tested were selected by an off-site computer that randomly chose 10% of those in safety-sensitive positions in any given 12-month period.

The grievor, Day, worked as a millwright, which was considered a “safety-sensitive position”. Day was randomly selected for a breathalyzer test. The test revealed a blood alcohol level of zero. However, Day felt humiliated and degraded by the notification and testing process. The Union grieved the policy, arguing there was no reasonable grounds to test Day and the ability to conduct random tests should depend on the history of alcohol-related incidents in the workplace rather than the level of danger in the mill.

Arbitration Board Decision:

The arbitrator weighed the employer’s interest in random alcohol testing as a workplace safety measure against the invasion of privacy to employees. The arbitrator concluded that the level of danger in the workplace did not justify the invasion of employee privacy that accompanied the employer’s policy of requiring employees to submit to a breathalyzer.

Court of Appeal Decision:

The Court of Appeal found that the arbitrator’s decision was unreasonable. The Court reasoned that the level of danger in the workplace justified the invasion of privacy, having regard to the minimally intrusive nature of the breathalyzer and the fact that the random alcohol testing policy only applied to those in safety-sensitive positions. The Court of Appeal concluded that Irving’s random alcohol testing policy was reasonable and that the grievance should have been dismissed.

Supreme Court of Canada Decision:

The Supreme Court of Canada upheld the decision of the arbitrator and rejected the employer’s policy of random alcohol testing. In doing so, the Court explained that there must be a “balancing of interests” between employee privacy and workplace safety. A dangerous workplace, in and of itself, is not a sufficient basis on which to violate an employee’s privacy. Random mandatory testing necessarily constitutes an invasion of employee privacy which must be weighed against the expected safety gains to the workplace.

The Court explained that, in a dangerous workplace, an employer is permitted to test individual employees for drugs and/or alcohol where:

• there is reasonable cause to believe that the employee was impaired while on duty;
• the employee was involved in a workplace accident or incident; or
• the employee is returning to work after treatment for substance abuse.

However, mandatory, random and unannounced testing for all employees in a dangerous workplace is not permitted unless there is strong evidence of a general problem of substance abuse in the workplace.

What This Means for Employers:

In a dangerous workplace, an employer can test an individual employee for drugs and/or alcohol if:

• there is reasonable cause to believe that the employee was impaired while on duty;
• the employee was involved in a workplace accident or incident; or
• the employee is returning to work after treatment for substance abuse.

The following types of workplaces had been found to be inherently dangerous in previous decisions:

• Mining operations;
• Oil refineries;
• Manufacturing plants involving the use of chemicals;
• Warehouse and distribution facilities using heavy-duty industry vehicles;
• Nuclear power plants;
• Chemical plants;
• Airlines; and
• Railway operations.

Mandatory random alcohol testing is generally not permitted in the workplace. If there is strong evidence of a general problem of substance abuse, a policy of random testing may be permitted. However, this will only occur in exceptional cases.