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 employee.

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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