The Supreme Court of Canada has released an important decision on the enforceability of unilaterally imposed random alcohol testing policies in the unionized context.

In a 6-3 split, a majority of the Supreme Court upheld an arbitration board’s award that determined Irving Pulp & Paper, Limited’s (“Irving”) unilaterally imposed random alcohol testing policy violated its collective agreement with the Communication Energy and Paperworkers Union of Canada (the “Union”).

The Policy

Irving’s random alcohol testing policy was implemented by the company in 2007 and applied to union employees working in safety sensitive positions. The policy provided that 10% of the employees working in safety sensitive positions would be randomly selected for testing over the course of the year. Employees with a blood alcohol concentration of greater than 0.04% were subject to disciplinary action. Employees who refused to comply with the testing were subject to immediate dismissal.

Supreme Court’s Decision

There was no dispute between Irving and the Union that the workplace was a dangerous work environment, or that the employees subject to the policy occupied safety sensitive positions. However, in the majority’s view, the dangerousness of Irving’s workplace did not automatically mean that a random alcohol policy was justified. Rather, a balancing of the employer’s safety interests and employee privacy rights was required to determine the reasonableness of such a policy.

The majority’s analysis of the jurisprudence suggested that in balancing the often conflicting interests of safety and privacy, employers may be required to prove more than reasonable cause in order for such a policy to be justified.

In the board’s decision, it had concluded that in order to justify random alcohol testing and its potential interference with employee privacy interests, Irving was obligated to prove that the workplace suffered from a “significant” alcohol problem. As it had not done so, Irving’s unilateral implementation of the policy was unreasonable and unenforceable.

Irving had produced evidence at arbitration that there had been 8 documented incidents of alcohol-related accidents between April 1991 and January 2006. The majority of the Supreme Court agreed with the reasonableness of the arbitrator’s assessment: 8 incidents over a 15-year period did not provide sufficient evidence that Irving’s workplace suffered from a significant alcohol problem that would justify random testing and its interference with employee privacy interests.

In light of its assessment of the jurisprudence, the majority concluded that the board’s decision was not unreasonable. In giving deference to the board’s findings, the majority of the Supreme Court determined that the board’s decision fell within a range of reasonableness and ultimately upheld the decision.

Takeaway

It is important to note that the Supreme Court’s decision did not close the door on the enforceability of random alcohol policies in dangerous work environments. The majority noted that a random alcohol testing policy may be justified where it is a “proportionate response in light of both legitimate safety concerns and privacy interests”. As a result, employers wishing to unilaterally implement a random alcohol policy should be prepared to introduce compelling documentary and viva voce evidence at an arbitration hearing that can show that alcohol use is pervasive in the workplace or has directly resulted in accidents or injuries.

Nor does the decision prohibit pre-employment or pre-access testing, which are not random and involve different considerations.

Unfortunately, the Supreme Court’s decision does not specifically address when alcohol impairment in the workplace will be considered a “significant” problem. For example, had even 1 of the 8 documented alcohol-related incidents resulted in the significant injury or death of an employee, would the Supreme Court’s conclusion have been different?

In addition, the Supreme Court’s decision confirmed a long line of jurisprudence that alcohol testing of employees in safety sensitive positions is generally permissible if there is reasonable cause to believe that the employee is impaired while on duty, where the employee has been directly involved in a workplace accident or significant incident, or where the employee is returning to work after treatment for substance abuse.