The recent decision of Irving Pulp & Paper, Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30, 2011 NBCA 58, by the New Brunswick Court of Appeal has upheld random alcohol testing where the workplace is determined to be "inherently dangerous" and the method of testing is minimally intrusive.

In this case, a grievance was brought by a 34-year-old millwright in the maintenance department of a pulp and paper mill. He was randomly selected for an immediate breathalyser test. The employer's policy on drug and alcohol use stated: 

"Employees involved in safety sensitive positions will be subjected to unannounced random tests for alcohol."

Although the employee passed the test, he challenged the policy. His union alleged there were no reasonable grounds to test because there had been no accident or incident that would justify such test. 

The arbitration board that initially heard the case focused on whether the policy struck a reasonable balance between the competing interests of the employee and employer.  The board found that it did not. It ruled that the employer had to justify the policy by demonstrating that the benefit of the policy was proportional to the intrusion on employees' privacy rights.  The board acknowledged that alcohol and safety issues were a prominent concern given the nature of the work at the employer's mill. But it distinguished between an "ultra-dangerous" workplace (such as a nuclear plant, an airline, a railroad or a chemical plant), where no history would be required to justify such a policy, and a merely "dangerous" one, where such testing would only be reasonable if the employer could demonstrate a history of alcohol-related incidents. The board ruled that there was no evidence of a significant problem with alcohol-related impaired performance in the employer's operations (there were 5 alcohol-related incidents but no accidents or injuries over 15 years).  Furthermore, despite random testing of 10% of the workforce, there had been no positive tests reported. As a result, the board concluded there was no real advantage to be gained and struck down the employer's policy.

The employer successfully applied to have the decision overturned by the New Brunswick Court of Queen's Bench.  In its reasons, the court disagreed with the board's distinction between "dangerous" and "ultra-dangerous."  In the court's view, once a workplace is found to be dangerous, no further justification is required; the only issue to decide is whether or not the policy was proportional to its potential harm. 

It was unreasonable to require a history of accidents or incidents to justify a policy of random alcohol testing where the potential for a catastrophe exists.  The prevention of a single catastrophe in the life of the employer's operations would be enough to make the policy reasonable in the court's view.  It would be unreasonable to require an employer to wait until a catastrophe occurred before taking proactive measures to prevent it.

The court ruled that breathalyser testing was minimally intrusive. The policy only applied to a limited number of employees in legitimately safety sensitive positions. As a result, the policy was not out of proportion to the actual and expected benefit. The policy was justified in the circumstances. 

The union then appealed to the New Brunswick Court of Appeal. The appeal was dismissed in a decision issued July 7, 2011. The appeal court rejected the union's argument that sufficient evidence of a pre-existing drug or alcohol problem in the workplace is a precondition to the enforceability of such a policy unless the workplace is "ultra-dangerous". The finding of the lower court was upheld.

This decision is important for employers. It confirms the employer's right to implement random alcohol testing for safety sensitive positions in an inherently dangerous workplace. One does not necessarily need to show a history of alcohol-related accidents or infractions.  Earlier decisions upheld testing where reasonable grounds to test clearly exist, or after an accident has occurred. This decision builds upon these prior cases. It confirms the employer's right to randomly test employees employed in safety sensitive positions, at least for alcohol. 

It must be noted, however, that this ruling would not necessarily extend to drug testing.  While current methods of alcohol testing can be used to assess an employee's impairment at the time of the test, the courts have determined that current drug testing methods are unable to provide this information.  As a result, the privacy intrusion associated with random drug testing can often not be justified.