Random drug and alcohol testing in the workplace is a safety issue that continues to test the boundaries of privacy rights of employees. There are two current cases that will help to clarify the current law with respect to this issue.

Irving Pulp & Paper Ltd. operates a paper mill in St. John, New Brunswick. Irving introduced a policy that allowed for random alcohol testing for employees in safety sensitive positions at the paper mill. The tests were done with a breathalyzer. The employees tested were selected by an off-site computer that randomly chose 10% of those in safety sensitive positions in any 12-month period. An Irving employee who was in a safety sensitive position was randomly tested. He grieved on the basis that the testing infringed on his right to privacy. The case went to arbitration and was ultimately heard by the New Brunswick Court of Appeal, which decided that once a workplace is found to be inherently dangerous, as long as the testing is minimally intrusive and only applies to those in safety sensitive positions, random alcohol testing can be justified. This decision was appealed to the Supreme Court of Canada and the appeal was heard on December 7, 2012. We expect that the Supreme Court decision will provide guidance on when random drug and alcohol testing in safety sensitive positions is a permitted intrusion on the employee's right to privacy.

In Alberta, Suncor Energy introduced a random drug and alcohol testing policy for employees at its oilsands operations in Fort McMurray. Under this policy, approximately 85% of union members working at the Suncor site would be subject to random testing. The employees who were selected would have to provide urine samples for testing. The union grieved on the basis that the proposed testing was an unreasonable intrusion on the privacy rights of the employees. The union obtained an injunction from the Alberta Court of Queen’s Bench (subsequently upheld by the Alberta Court of Appeal) prohibiting Suncor from implementing its drug and alcohol testing policy before the grievance is resolved by arbitration.

It will be interesting to see what justifications for random alcohol and drug testing the arbitrator will consider sufficient to outweigh privacy concerns. Suncor led evidence in court that in 12 years it had seven fatalities, with three of the deceased employees having been under the influence of drugs or alcohol at the time of their deaths. Despite that evidence, the Court of Appeal decided that there was no suggestion of immediate peril caused by wide-ranging drug or alcohol use, or significant risk of loss by accident at the Suncor site, and that the balance of convenience did not favour implementing the more intrusive new policy before an arbitrator was able to make a ruling.

Random drug and alcohol testing for safety sensitive positions is well-established in the United States. These decisions, setting out the proper tests when privacy rights and safety concerns collide, will have a significant impact on whether similar drug and alcohol testing will be able to be widely used in Canada.

As these decisions will be made soon, the best approach for employers is to wait until the Supreme Court of Canada makes its decision in Irving and an arbitrator makes a decision in Suncor before changing their drug and alcohol testing policies, or creating new drug and alcohol testing policies.