Employers may be feeling a hangover of sorts following a Supreme Court of Canada decision earlier this year that struck down an employer’s random alcohol testing policy. The headache continued in a recent Ontario arbitration decision that expanded the scope of the Supreme Court decision. However, a close reading of the decisions reveals testing is still available to employers where there is sufficient evidence to support it.
The Decisions
In Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd., 2013 SCC 34 (“Irving”) the Supreme Court of Canada addressed a union’s challenge to the employer’s management rights to unilaterally impose alcohol testing of 10% of randomly selected employees working in safety sensitive positions.
A six to three majority in Irving upheld the arbitration board’s decision, even though the employer produced evidence of eight alcohol-related incidents in a 15 year period at the worksite.
Subsequent to Irving, an arbitrator in Mechanical Contractors Association Sarnia v United Association of Journeymen and Apprentices Of The Plumbing & Pipefitting Industry of the United States and Canada, Local 663, 2013 CanLII 54951 (ON LA) (“Sarnia”) applied the principles set out in Irving in a challenge to a policy that unilaterally imposed pre-access alcohol and drug testing of all employees (i.e. testing employees before they are allowed access to the worksite).
With regard to the “management rights” challenge in Sarnia, the arbitrator concluded the purported safety benefits of the policy were not proportional to the harm to employee privacy, because the employers did not meet their onus to prove an alcohol or drug use problem existed at the workplace.
Further, the arbitrator in Sarnia concluded the policy also failed a human rights challenge, because the employer failed to demonstrate the policy was reasonably necessary to meet its stated purpose. The arbitrator based this decision largely on the employer’s failure to establish there was a health and safety problem due to alcohol or drug use at the workplace.
Encouragement for Employers
Although the alcohol and drug testing policies in Irving and Sarnia were deemed unreasonable, the decisions also state employers may implement such policies when certain requirements are met. In this manner, the decisions serve as a guide for employers.
In Irving, the Court confirmed employers are generally entitled to test individual employees in safety sensitive positions, without having to demonstrate alternative measures have been exhausted, in the following “reasonable cause” circumstances:
- where there are reasonable grounds to believe the employee was impaired while on duty,
- where the employee was directly involved in a workplace accident or significant incident, or
- where the employee returns to work after treatment for substance abuse.
The Court in Irving added that employers can impose random alcohol testing in a dangerous workplace where the employer can prove the testing is “a proportionate response in light of both legitimate safety concerns and privacy interests”. In order to meet this burden, the employer needs to produce evidence that a “significant” problem with workplace alcohol use exists.
The arbitrator in Sarnia wrote a similar passage, stating any employer may implement pre-access alcohol or drug testing at a worksite if the employer can demonstrate the testing can reduce a substance abuse problem at that worksite. The test must also form just one part of a broader alcohol and drug policy that is consistent with the applicable human rights laws in the jurisdiction.
More encouragement for employers may be found in the Irving dissent, which may tip the balance in cases where arbitrators or courts struggle to determine whether the evidence produced is sufficient to justify the impugned policy. In Irving, the dissenters stated the degree of evidence required to demonstrate a problem with workplace alcohol use should not be as high as it was held to be in Irving, particularly because a high standard forces employers to be reactive to accidents and injuries rather than be proactive to prevent them.
Finally, employers can find some relief in the arbitrator’s assertion in Sarnia that the arbitrator was not bound by decisions rendered in other jurisdictions. This assertion cuts both ways—courts and arbitrators outside of Ontario are not bound by Sarnia, and the case law in other jurisdictions, Alberta in particular, is more favourable with regard to pre-access testing. Further, Sarnia is also not binding on any other arbitrator, including arbitrators in Ontario.
Of note, an Alberta arbitration in Communications, Energy and Paperworkers Union, Local 707 v Suncor Energy Inc. is upcoming. This case concerns an employer’s unilaterally imposed policy of random alcohol and drug testing of employees in safety sensitive positions. The arbitrator will be bound by Irving, of course, but the case may provide an example for employers where sufficient evidence is produced to justify random alcohol and drug testing.
Steps for Employers
Irving confirms the onus is on the employer to demonstrate the employer’s alcohol and drug policy is proportional to the harm to employee privacy. Employers who take the following steps and make the following considerations before implementing their policy will likely meet the onus.
- Gather specific evidence of a health and safety workplace problem due to alcohol or drug use at the workplace in question. Non-specific evidence from other jurisdictions was not sufficient to justify the policy in Sarnia. Further, evidence of general alcohol and drug use in areas beyond the employer’s catchment area may be too broad. The employer’s statistics should as specific as possible to demonstrate the need for testing the employer’s employees at the employer’s worksite. Employers should be wary of unilaterally imposing a policy without this supporting evidence.
- Gather evidence to demonstrate the policy is suitable for the professed purpose. For example, if the employer wants to impose pre-access (or pre-employment) testing for the purpose of preventing impairment on duty, the employer will need to gather evidence that demonstrates pre-access testing (which may be done weeks before the employee enters the worksite) improves safety and is an effective predictor of future alcohol or drug use at the workplace.
- In Sarnia, the general contractor required its contractors to have drug and alcohol policies that contained minimum standards. These policies generally stated a positive pre-access test or a refusal to take the test resulted in a permanent ban from the worksites. Policies that are more flexible and sensitive to an individual employee’s circumstances are more likely to be deemed reasonable than policies that preclude employees from the opportunity to redeem a negative test.
- Even though all parties in Sarnia agreed that all jobs performed at the impugned worksites were “safety sensitive”, the arbitrator noted the breadth of the policy, which subjected all employees to pre-access testing, was a factor contributing to the decision to deem it unreasonable. Therefore, in consideration of the employee’s right to privacy, the policy should be as minimally invasive as possible relative to the evidence available in support of the benefits of testing.
- Employers should work with employees as much as possible to balance each party’s interest. A policy included in a collective agreement or employment contract is unlikely to be challenged. Further, if it is challenged, policies implemented by agreement are less likely to be deemed unreasonable than are policies imposed unilaterally.
- Finally, employers should remember that none of the above steps are required to test employees working in safety sensitive positions where “reasonable cause”, as noted above, is evident.
Conclusion
Irving and Sarnia address the tension between safety and privacy interests. The decisions in both of these cases indicate the balance has swung toward protecting privacy interests. However, the Irving and Sarnia decisions preserve employers’ right to impose unilateral alcohol and drug policies when the evidence indicates the safety benefits of the policy are proportionate to the harm to employee privacy.
The arbitrator in Sarnia indicated employers “can and probably should” implement alcohol and drug policies. Employers just need to have specific, supporting evidence to justify their policies, and then be careful not to overdo it.
