The Supreme Court of Canada released its long-awaited decision in the case of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (“Irving Pulp”), last Friday. The decision deals with the tricky issue of whether or not Irving Pulp, in this case, was entitled to carry out random alcohol testing of its employees.

BACKGROUND

When Perley Day was asked to take a random alcohol test back in 2006, he can scarcely have realized that the results of that test would be considered for the next 7 years by all levels of Canadian courts. More so, given that Mr. Day was a teetotaler who had not drunk alcohol since 1979 and who, of course, passed the random alcohol test.

Mr. Day was employed by Irving Pulp at its paper mill, which was a dangerous (safety-sensitive) work environment. He was a member of the Communications, Energy and Paperworkers Union of Canada, Local 30 (the “Union”). The Union challenged Irving Pulp’s right to have conducted the random test at all.

LEGAL ISSUES

The legal issues with both drug and alcohol testing usually relate to balancing the employee’s human rights and privacy rights against the employer’s concerns for safety. Employers say that they need to be certain that employees in safety-sensitive positions are not impaired when carrying out their duties.

However, drug and alcohol testing is problematic from a human rights perspective because of the treatment of employees who may be dependent on drugs or alcohol, or who are perceived to be dependent on drugs or alcohol, as both of these may be considered a “disability” which is a protected ground under human rights legislation in all Canadian jurisdictions.

Further, privacy legislation throughout Canada tends to impose the obligation that information can only collected for purposes that are “reasonable”. Collecting personal information from a drug/alcohol test is much more likely to be reasonable for safety-sensitive positions than for non-safety-sensitive ones. As the original arbitration board put it:

rights to privacy and the related right of security of the person are important and prized incidents of Canadian citizenship…The invasion of that privacy by the random alcohol testing policy is not trifle… It involves bodily intrusion and the surrender of bodily substances… There can be an element of public embarrassment.

In this case, the Union challenged Irving-Pulp’s random alcohol testing policy on the basis that Irving Pulp had no right to unilaterally implement the policy, under the terms of the collective agreement, and because the policy breached its employees’ privacy rights, according to the Union.

PROGRESS OF THE CASE

The original arbitration board agreed with the Union and held that the policy was unjustified based on the lack of evidence of an existing problem with alcohol use in Irving Pulp’s workplace. Two levels of appeal quashed the original decision of the arbitration board.

DECISION

In a split decision, the Supreme Court of Canada agreed with the original decision of the arbitration board and held that Irving Pulp’s policy of random alcohol testing, was unjustified. The Court came to this decision primarily because Irving Pulp had failed to provide evidence of an existing problem with alcohol use in its workplace:

a unilaterally imposed policy of mandatory, random and unannounced testing for all employees in a dangerous workplace has been overwhelmingly rejected by arbitrators as an unjustified affront to the dignity and privacy of employees unless there is reasonable cause, such as a general problem of substance abuse in the workplace.

The Court essentially set out guidance on how this issue needs to be decided, by considering:

  1. Is the workplace dangerous?
  2. If so, are there enhanced safety risks (for example, evidence of a general problem with substance abuse in the workplace?). The Court referred to this is the “balancing of interests proportionality approach”.
  3. If so, the employer may be able to justify random testing, for safety sensitive positions.

Irving Pulp could only point to eight alcohol-related incidents in the previous 15 years and, during the 22 months when the random testing policy was in place, no Irving Pulp employee had failed the random alcohol test. The Court held that this was not evidence of an enhanced safety risk, justifying interference with employees’ privacy rights.

The three dissenting judges would have allowed the random testing policy and regarded the decision of the original arbitration board as wrong, for three primary reasons:

  1. The arbitration board had required evidence of a “significant” or “serious” alcohol abuse problem at Irving Pulp’s mill, rather than “a” problem, which was the proper test under arbitral jurisprudence;
  2. The arbitration board also required that the evidence of alcohol use be tied or causally linked to an accident, injury or near miss at the plant. The dissenting judges said “an employer does not have to wait for a serious incident of loss, damage, injury or death to occur before taking action. To require such a causal connection is not only unreasonable, it is patently absurd”;
  3. In making its original decision, the arbitration board had also inferred that the risk cannot have been high because the random testing policy only tested 10% of employees in safety sensitive positions in any given year. The dissenting judges said that this argument would incentivise employers to test a higher proportion of employees, and lead to a greater intrusion into the privacy of employees. They also said that even low testing percentages can be highly effective as a deterrent.

WHAT DOES THIS MEAN?

On first blush, this is bad news for employers. The random testing policy was found to be unjustified and therefore, unlawful. However, it is important to note the following:

  • This case very much turned on its facts and generally a failure by Irving-Pulp to demonstrate that there was a problem with alcohol abuse in its workplace. Employers who can demonstrate a drug/alcohol problem may well be able to justify a random testing policy.
  • In a unionized workplace, employers can still negotiate a random testing policy with the union.
  • The decision does not expressly deal with random drug testing.
  • The decision does not deal with human rights issues.
  • The decision only relates to unionized employees.

POSITIVES FOR EMPLOYERS

Employers can also take some comfort from the following comments and guidance by the Supreme Court of Canada:

  1.  The Court expressly stated that “reasonable cause” testing is permissible:

“when a workplace is dangerous, an employer can test an individual employee if there is reasonable cause to believe that the employee was impaired while on duty, was involved in an workplace accident or incident, or was returning to work after treatment for substance abuse. In the latter circumstance, the employee may be subject to random drug or alcohol testing on terms negotiated with the union”.

The court even gave guidance that random testing following a return to work programme, would ordinarily last for about two years.

  1. Although not expressly stated, it is clear from the decision that employers who can demonstrate a “general problem” of drug/alcohol abuse in the workplace may well be able to justify a random testing policy. There is little guidance as to what evidence would be required, but it is clear that employers would need statistics to show more than one drug/alcohol related incident every two years. Witness evidence of employees drinking while at work or having alcohol in lockers would also assist in this regard.
  2. The Court did not rule out the possibility of a workplace being so inherently dangerous that random testing might be permissible even without the need for a “general problem” of drug/alcohol abuse.

Both federally-regulated and provincially-regulated employers throughout Canada who wish to impose random testing, will now need to see if they have evidence of (a) a dangerous workplace and (b) a “general problem” of substance abuse in that workplace, so as to justify a random drug/alcohol testing policy of employees in safety-sensitive positions. Note that there may be evidence of a general problem in relation to one, but not the other.

WHAT DOES THE FUTURE HOLD?

Employers in Alberta, in particular, are waiting for a decision in the arbitration between Suncor and the Communications, Energy and Paperworkers Union of Canada, Local 707 which considered Suncor’s random drug testing policy. Drug testing is generally more difficult to justify because it does not show current impairment. However, it was clear during the various injunction applications leading up to the arbitration that Suncor seemed to have evidence of a general problem with drug abuse in its workplace. Those with knowledge of the oil sands work environment would generally agree that there is a drug culture in such camps and, with this in mind, Suncor may well see the Irving Pulp decision as one which assists its cause.

The problem with drug/alcohol testing is that it is a crude tool. It does not achieve its objective. The purpose of testing is to ensure that employees are not impaired. However, impairment need not be related to drugs or alcohol. Sleep deprivation, for example, is one of the highest forms of impairment in a workplace and tests are being developed which may test for impairment, rather than the presence of drugs/alcohol. However, such tests would bring their own set of legal issues; specifically, what is the reason for the employee’s impairment? Is the employee sleep deprived because he/she is a new parent? Is the employee sleep deprived because he/she has a disability such as sleep apnoea?