On June 14, 2013, the Supreme Court of Canada rendered its decision in Irving Pulp & Paper Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30, on the controversial issue surrounding random drug and alcohol testing in the workplace, overturning the New Brunswick Court of Appeal's decision, and ruling that random testing is not justified in the workplace, even in inherently dangerous work environments.
At first instance, the union filed a grievance challenging the mandatory random alcohol testing policy for employees in safety sensitive positions which the employer, Irving Pulp and Paper Limited, unilaterally implemented at its paper mill. Under this policy, 10% of employees in safety sensitive positions were to be randomly selected for unannounced breathalyser testing over the course of a year. A positive test for alcohol lead to disciplinary action, including dismissal. The Arbitration Board allowed the grievance and concluded that the policy was unjustified because of the absence of evidence of an existing problem with alcohol use in the workplace.
On judicial review, the Board's award was set aside by the New Brunswick Court of Appeal who concluded that employer and employees' interests are reasonably balanced when random alcohol testing is introduced in a workplace that is inherently dangerous.
The case was heard by the Supreme Court of Canada on December 7, 2012. The legal issue at the heart of this case was the interpretation of the management rights clause of the collective agreement and more specifically, whether the employer was justified in unilaterally imposing a policy of mandatory random alcohol testing, given the enhanced safety risks of the employer's workplace.
Many arbitration decisions have been rendered which provide that an employer can impose a rule with disciplinary consequences only if the need for the rule outweighs the harmful impact on employees' privacy rights. This approach has resulted in consistent arbitral case law in which it has been found that when a workplace is considered inherently dangerous, employers are justified in testing their employees in the following circumstances: if there is a reasonable cause to believe that the employee was impaired while on duty, was involved in a workplace accident or incident, or was returning to work after treatment for substance abuse.
That being said, a policy of mandatory random testing imposed unilaterally, even in safety sensitive positions, has been overwhelmingly rejected by arbitrators indicating that such policies are an unjustified affront to the dignity and privacy of employees. The dangerousness of a workplace although clearly relevant, has never been found to be an automatic justification for such a policy.
In the present case, it was ultimately decided that the employer had not demonstrated the requisite safety concerns that would justify universal random testing. On this point, the Supreme Court stated "But I have been unable to find any cases, either before or since Nanticoke, in which an arbitrator has concluded that an employer could unilaterally implement random alcohol or drug testing even in a highly dangerous workplaces absent demonstrated workplace problem". As a result, the Supreme Court found that the employer exceeded the scope of its rights under the collective agreement by imposing random alcohol testing in the absence of evidence of a problem in the workplace with alcohol use.
In light of this decision, employers, even in non-unionized settings, must be mindful of their obligation to demonstrate the reasonableness of each testing standard and in contemplating the adoption of testing as part of a drug and alcohol policy. Employers will also need to consider the burden they have to show that testing is necessary and reasonable in the specific circumstances of their activities. As stated by the Supreme Court “…even in a non-unionized workplace, an employer must justify the intrusion on privacy resulting from random testing by reference to the particular risks in a particular workplace.” Accordingly, employers are encouraged to revisit their current practices and their alcohol and drug policies to ensure that proper measures are implemented and that random testing be imposed, as the case may be, within the parameters of the present Supreme Court decision.