A Sobering Decision for Random Alcohol Testing in the Workplace
Davis LLP Employment & Labour Law Bulletin
June 18, 2013
Supreme Court of Canada releases decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd, 2013 SCC 34
On June 14, 2013, the Supreme Court of Canada (SCC) released its decision on management’s right to unilaterally implement random alcohol testing in a unionized workplace.
Irving Pulp and Paper operated a paper mill in Saint John, New Brunswick. In 2006, the company implemented random alcohol testing for employees who worked in “safety sensitive” positions.
The majority of the SCC held that random alcohol screening in the circumstances was unreasonable and violated the collective agreement. The majority affirmed that under a collective agreement, management’s right to unilaterally make rules must be balanced against an employee’s right to privacy.
The employer’s interests in a safe workplace were, of course, legitimate. However, they had to be balanced against the invasive nature of the alcohol testing program which engaged broader interests including liberty, personal autonomy, and freedom from “public embarrassment”.
The SCC agreed that the safety benefits to the employer ranged from “uncertain to … minimal at best”, while the impact on employee privacy was severe. As a result, the SCC found the policy to be an unreasonable exercise of management rights under the collective agreement.
The SCC emphasised that a dangerous workplace alone has never been found to be sufficient to justify random alcohol or drug testing in the absence of a demonstrated alcohol or drug abuse problem. Indeed, Abella J. noted that she had only found two arbitral decisions upholding random alcohol testing programs and, in both cases, the employer had demonstrated a general problem with alcohol use in a dangerous workplace.
The SCC explicitly stated that it was not deciding that danger alone would never justify a testing program, and said that it was not “beyond the realm of possibility” that a random testing program might be justified without evidence of a substance abuse in “extreme circumstances”. However, given that dangerous workplace justifications have been rejected in the context of railways, chemical plants, and “workplaces that pose a risk of explosion”, employers should be extremely cautious before implementing a random drug and alcohol testing program in the absence of demonstrated substance abuse at work.
The three judges’ dissenting opinions questioned whether decisions with consequences to the public interest beyond the particular union and employer should be left in the hands of the arbitrators. That statement appears as a subtle invitation for the legislature to intervene, perhaps setting base rules that balance privacy with safety.
Take Away Points for Employers
The case has a number of lessons for employers, particularly for employers in unionized workplaces:
The SCC made two other findings that deserve comment:
If you have any questions concerning this bulletin, please contact the authors or any member of the Davis LLP Employment and Labour Group.