Updated: Supreme Court decision on randomized alcohol testing

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In a decision released this morning, The Supreme Court of Canada upheld the decision of a New Brunswick labour arbitration board, which struck down Irving Pulp and Paper Ltd mill’s policy requiring random alcohol testing for employees.

The mill had introduced a unilateral randomized alcohol testing policy, which was challenged by a worker who had passed the testing, based on the ground of privacy. The board found in favour of the employee, however the New Brunswick Court of Queen’s Bench and Court of Appeal both found in favour of the employer.

The majority of Supreme Court judges agreed with the labour board, which found that the mill did not have a serious safety problem associated with alcohol, and therefore did not have reasonable grounds for testing.

“In this case, the expected safety gains to the employer were found by the board to range from uncertain to minimal, while the impact on employee privacy was severe,” the court’s decision reads. The judgment stated that employees wishing to put this type of policy into place should not expect it to stand up to a challenge in court.

The decision was split 6-3 and in a lengthy statement, the dissenting judges argued that the decision put too high a burden on employers to justify a random alcohol testing policy, requiring a “significant or serious” problem. The Irving mill had seen just eight cases in 15 years.

“An employer does not have to wait for a serious incident of loss, damage, injury or death to occur before taking action,” the dissenting judges argue. “To require such a causal connection is not only unreasonable, it is patently absurd.”

One added point was that the majority of the court has suggested that there is no different standard for testing for alcohol and testing for drugs, which used to be considered two different levels, Filion Wakely Thorup Angeletti associate Chris Sinal said.

The court did leave a small opening for employers, saying in some “extreme” circumstances there may not be a need for reasonable cause, but did not elaborate on what that situation might look like.

“In most cases for random drug and alcohol testing you’re going to need some kind of reasonable cause and evidence to demonstrate why the risk in the workplace and the need to address it outweighs the privacy interest of the employee,” Sinal said. “The impression before this case was that employers of a hazardous work environment may have a lighter onus to show there is a pre-existing problem but that doesn’t appear to be the case anymore and they are going to have to show some evidence.”

The court didn’t clarify what level of evidence would be required, but it would essentially be a balance of interest so the evidence of a problem and safety risk outweighed the right to privacy.

The case is of particular interest as more companies push for alcohol and drug testing under health and safety policies. Testing is common in parts of Canada, specifically in the west where mining and other industries are influenced by the US, where 50% of industries use randomized testing in the workplace.

Page 2: Alberta group still confident random drug testing is an option.

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  • An Expat on 2013-06-14 11:20:29 AM

    Another disgusting erosion of employer rights.

    Don't be surprised if in the near future, there will be no employee hiring.

    Companies will go to term limited contract workers with no benefits, or move the work offshore. Employees, see how you enjoy your privacy then!

  • Michael de la Place on 2013-06-14 1:09:31 PM

    Did the board not consider that Irving does not have a serious problem BECAUSE they were doing the testing????

  • B. P. on 2013-06-14 1:17:14 PM

    To listen to 'Ex-Pats' comment on this issue seems to be reactionary instead of well thought and reflective....the issue of employees' rights must be balanced with those concerns of the employer--should they come into conflict, then the tie must go the employee, as giving 'carte-blanche' to employers to conduct such testing randomly infringes unnecessarily into the personal lives of the individual. Throughout the years, employers have had to watch for this kind of conduct and the vast majority of workers are responsible sorts and fear the penalties that irresponsible conduct will light on their shoulders. The workplace will correct itself on this issue and a blanket series of testing is uncalled for.

  • An Expat on 2013-06-14 2:20:39 PM

    I'd bet that B.P. above would be the first one to sue under the guise of workplace safety when drunken or stoned George drives his fork truck into the fuel storage tank killing several of his fellow workers in the ensuing inferno.

    On an issue of safety, there should be no margin of error, no intrusion into the workers conduct, too intrusive.

    As for employee rights - they have the ultimate right - to quit - if they don't like the work conditions.

    Not too long ago, a company was censured for acquiring photographic evidence of one of their workers having a dope break before returning to the assembly line. He had been a long term problem, so they took a picture of him smoking up. The same sad court ruled the company did not have the right to take said picture of him because, while he was still on company property (the parking lot) stoner Joe had a reasonable expectation of privacy in his pickup truck. To be clear, it was not medical maryjane.

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