The Supreme Court of Canada, in a 6-3 majority decision, recently upheld an arbitrator’s determination that the random alcohol testing component of an employer’s drug and alcohol testing policy was unreasonable. The employer, Irving Pulp & Paper Ltd., which operates a unionized kraft mill, had unilaterally implemented a drug and alcohol testing policy for employees in safety sensitive positions. As part of the policy, 10% of employees in safety sensitive positions would be randomly selected for unannounced breathalyser testing each year. The Union grieved this aspect of the policy. The arbitration board upheld the grievance because there was no evidence of a significant problem with alcohol use in the workplace.

The majority of the Court noted that the arbitral jurisprudence had developed a “balancing of interests” proportionality approach to drug and alcohol testing, weighing the safety interests of the employer with the privacy interests of employees. The majority stated that the dangerous nature of a workplace alone is not an automatic justification for random testing. Rather, the fact that a workplace is dangerous is what triggers the balancing of interests exercise. In order to justify random testing, the majority held that an employer must provide evidence of a problem with substance abuse in the workplace.

In this case, the Court agreed with the arbitration board’s determination that 8 documented incidents of alcohol consumption or impairment at the mill over a 15 year period, with none connected to accidents, injuries or near misses, did not reflect a problem with workplace alcohol use. The majority also referred to the board’s finding that, over the course of nearly two years of testing following the introduction of the policy, no employee had tested positive on either a random test or a test for reasonable cause as demonstrating the lack of a problem with workplace alcohol use.

The majority of the Court did not close the door on the right of an employer to impose random testing in a dangerous workplace if it is a “proportionate response in light of both legitimate safety concerns and privacy interests”. This means that if employers want to defend a random testing policy, they should focus on gathering evidence about alcohol and drug use within the workplace, including observations of employees with alcohol on their breath, evidence of drugs or alcohol being present on the worksite, and/or evidence linking drug and alcohol use to workplace incidents.

Finally, it must be emphasized that the Court’s decision does not disturb the long-standing arbitral jurisprudence that permits drug and alcohol testing for employees in safety-sensitive positions where there is reasonable cause to believe that an employee was impaired while on duty, as part of an investigation into a workplace accident or incident, or where an employee is returning to work after treatment for substance abuse. In the latter situation, random testing of the employee may be part of the return to work arrangement.

The Supreme Court of Canada’s decision can be seen here.