The Supreme Court of Canada (the “SCC”) recently addressed when, if ever, an employer can unilaterally impose random alcohol testing in the workplace. The answer, seemingly, is almost never.
In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, 2013 SCC 34, the employer imposed drug and alcohol testing for employees holding positions that Irving designated as “safety sensitive.” This new policy included universal random alcohol testing for 10% of the safety sensitive employees over the course of the year. The union challenged such random testing as unreasonable.
On the road to the Supreme Court of Canada, the New Brunswick Labour and Employment Board and the New Brunswick Courts disagreed. The Board allowed the grievance, finding that the policy could not be justified, as the minimal safety gains it was likely to produce did not offset the invasion of privacy created by random alcohol testing. The Courts overturned the Board’s decision and held that an employer can unilaterally impose random alcohol testing in any dangerous workplace without having to show reasonable cause.
The SCC found the policy to be unreasonable and concluded that alcohol testing is only reasonable in a limited set of circumstances.
The SCC held that generally, employers are entitled to test individual employees who occupy safety sensitive positions for alcohol and drugs only:
- if there is reasonable cause to believe the employee is impaired while on duty;
- where the employee has been directly involved in a workplace accident or significant incident; or
- where the employee is returning to work after treatment for substance abuse.
With respect to random testing outside of the above circumstances, danger in the workplace is not an automatic justification for random alcohol testing with disciplinary consequences. It is only a factor in determining whether random testing is reasonable. An employer must also provide evidence of a substantial problem with substance abuse in the workplace.
In this case, the SCC held that eight incidents over a 15-year period was not deemed sufficient to constitute a significant enough problem to merit universal, random testing. Further, in the 22 months which passed since the policy was implemented, no positive tests were found.
Despite the above, the SCC was also clear that random alcohol (and drug) testing was still permissible if the union and employer agree. Given this decision, however, we expect few unions to agree in the future. Employers will have to deal with non-unionized workplaces and managers differently. In those cases, imposing unreasonable random testing may raise issues of constructive dismissal, privacy and human rights.
As a result of the decision, it leaves open only narrow circumstances in which random alcohol testing will be allowed. A dangerous workplace alone is not enough. Employers will probably have to have evidence of a substantial alcohol or drug problem in the workplace. Otherwise, employers will probably be restricted to targeted testing according to the individual circumstances listed above.