An employer cannot unilaterally impose random drug and alcohol testing solely because the positions held are safety sensitive and/or the workplace is dangerous: an alcohol or drug problem must also be demonstrated to exist among the employees.

That was the majority finding of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp and Paper, Ltd.1

Facts

The employer operates a kraft paper mill. Although the collective agreement did not contain any provision concerning the employer’s right to carry out random drug and alcohol testing, the employer, under its management rights, unilaterally imposed a random drug and alcohol testing policy (Policy). Under that Policy, 10% of employees in what the employer classified as “safety-sensitive” positions were to be randomly selected for unannounced testing each year. A positive result attracted disciplinary action up to and including dismissal.

According to the evidence, during the company’s last 15 years of operation, there were 8 documented incidents of alcohol consumption or impairment at the workplace.

A grievance was nonetheless filed by an employee who was given a breathalyzer test revealing a blood alcohol level of zero.

The arbitration board allowed the grievance and concluded that because there was no evidence of a general problem with drug or alcohol use in the workplace, the employer could not unilaterally impose a mandatory random testing policy solely on the basis of its management rights and without any negotiations with the union. On judicial review, the arbitration board’s award was set aside and the Policy of the employer was found to be valid. This decision was upheld by the New Brunswick Court of Appeal.

Decision

In a majority decision, the Supreme Court of Canada restored the findings of the arbitration board: in the absence of a specific provision in the collective agreement, duly negotiated between the parties, an employer cannot, solely because the positions held are safety sensitive or the sector in which the business operates is dangerous, unilaterally subject its employees to random testing. If the employer wishes to do this, it must not only prove that the workplace is dangerous, but also establish that a real problem with alcohol or drug use exists within the company.

In this instance, according to the court, 8 incidents over a period of 15 years did not constitute sufficient evidence of a problem justifying the imposition of random testing. What’s more, the goal of deterrence raised by the employer to justify the validity of its Policy could not, in view of the evidence presented, be sustained. The fact that all the employees tested had negative results could just as easily demonstrate that there was no problem within the company.

The court pointed out, however, that in a dangerous workplace, even if the collective agreement does not include a provision in this respect, the employer can subject particular employees to testing in certain circumstances. The majority of the court writes:

[45] (…) The dangerousness of the workplace has only justified the testing of particular employees in certain circumstances: where there are reasonable grounds to believe that 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.

Conclusion

By this decision, the Supreme Court confirms previous Canadian case law in this area. Under the “Canadian model,” the burden of proof on an employer wishing to unilaterally impose random drug testing on its unionized employees is, to say the least, onerous. Companies wishing to establish such testing in the absence of relevant evidence that an actual problem exists will more often than not gain from negotiating the terms of such testing with the union.

In any event, as pointed out by the Supreme Court in this case, there is nothing to prevent an employer from imposing such testing where it believes that an employee has performed his or her duties while impaired, where a workplace accident or significant incident has occurred or where an employee with a drug or alcohol problem returns to work after treatment for substance abuse.