Two high-profile cases are testing Canada’s alcohol and drug testing-in-the-workplace laws.  In both, the central issue is the difficult balancing game between the need to ensure a safe work environment, and concerns over an individual’s privacy and human rights.

On Friday, December 7, 2012 the Supreme Court of Canada heard an appeal in the Communications, Energy and Paperworkers Union of Canada (CEP), Local 30 v. Irving Pulp & Paper, Limited case. The employer seeks to have employees undergo random alcohol tests at its mill operations in New Brunswick, to the ire of the union. On Monday, December 10, 2012, a labour arbitration board in Alberta began hearing the CEP’s opposition to Suncor Energy’s attempt to introduce random alcohol and drug testing at its oil sands operations in Fort McMurray for all employees and contractors. (More on this from the CBC: "Companies push for random drug, alcohol testing".)

Generally speaking, the current Canadian law usually restricts such testing to dangerous or safety-sensitive workplaces.  Employers can have policies and practices on employee drugs or alcohol testing so long as they are a bona fide occupational requirement. They can also test employees post-accident or incident where substance abuse may have been a contributing factor.

The Canadian Human Rights Commission (“CHRC”), on the other hand, considers alcohol and drug testing as prima facie discrimination. According to the CHRC’s “Policy on Alcohol and Drug Testing”, past or current alcohol or drug dependence is considered a disability and Canadian law prohibits discrimination on such a basis.

What is being challenged in these two cases is the random testing of employees for the prevention of workplace accidents beyond the “safety sensitive work” context. With Canadian jurisprudence on this aspect of the issue anything but clear, the Irving and Suncor cases are expected to shed some light.