BLG’s Labour & Employment Group held its 16th Annual Symposium on November 20, 2013 in Toronto. The following is a synopsis of a portion of a presentation given by Duncan Marsden and Adam Guy at this symposium:

The case law surrounding drug and alcohol testing policies has always been difficult to navigate for organizations that are looking to enhance the safety of their workplace. However, the recent Supreme Court of Canada decision inCommunications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (“Irving”) has helped provide some guidance in the area. 
 
The facts of the case are relatively straightforward. In 2006, Irving Pulp & Paper unilaterally implemented a drug and alcohol testing policy which allowed for the random testing of employees throughout the course of the year. If an employee tested positive, the employee would be subject to disciplinary action, including dismissal. If an employee opposed the test, this could be grounds for immediate dismissal. An employee who was a self-identified “teetotaller” was requested to take an alcohol test via a breathalyser. This employee originally submitted to the testing, but a complaint was subsequently filed by the union on his behalf.
 
The Supreme Court of Canada upheld the arbitrator’s original ruling that Irving Pulp & Paper’s unilaterally implemented random alcohol testing policy was not justified. In coming to their conclusion, the Court attempted to balance the competing interests of employers’ safety concerns in the workplace, with employees’ rights to privacy and human rights protection.
 
In doing so, the Court focused on the lack of evidence that there existed a drinking problem at the workplace which needed to be addressed. The Court ruled that the 8 documented cases of alcohol consumption at the workplace over a period of 15 years was not enough to justify the imposition on an employee’s privacy.
 
The Court also took the opportunity to reiterate where the law currently stands. An employer can test an individual employee: 1) if there is reasonable cause to believe that the employee was impaired while on duty, 2) if the employee was involved in a workplace accident or incident, or 3) who was returning to work after treatment for substance abuse.
 
Despite deciding that the unilaterally imposed random alcohol testing policy was unjustified, the Court did state that in the right circumstances, a policy of this nature could be allowed.
 
Since Irving, a recent arbitral decision held that a proposed pre-access alcohol and drug testing policy was a violation on the Ontario Human Rights Code. At the time of the presentation, another case dealing with random drug and alcohol testing in the workplace seems to be heading towards the steps of the Supreme Court.
 
It is important that organizations make themselves aware of this ongoing issue, especially in light of the ongoing case law in the area.
 
Jonathan Thoburn