Random alcohol testing policy gets green light

New Brunswick employer wins appeal in case that looked at dangerous versus 'ultra' dangerous workplaces

By Jeffrey R. Smith

Random testing of employees for alcohol and drug use has been a contentious issue in Canadian workplaces.

There have been many decisions by courts and arbitrators in recent years, some seemingly contradicting each other over when random testing is justifiable. Lately, it seems it’s become more acceptable in circumstances where there could be a danger to employees and others if something goes wrong. In those cases, the last thing anyone would want is an impaired individual in a dangerous situation.

Alcohol testing is generally seen as more appropriate, since most forms of drug testing can’t show current impairment, only past use. If alcohol is in someone’s system, though, he’s probably drunk. So testing employees at work makes some sense.

Recently, a New Brunswick pulp and paper company won the right to randomly test its employees for alcohol use at work because it was a dangerous working environment involving chemicals and other industrial characteristics. Because an accident would endanger employees, as well as possibly the public, the testing was ruled justified by the province’s Court of Appeal to ensure employees were on the ball.

However, the employer had to take the case to two courts to solidify this decision, because a labour board originally found the alcohol testing wasn’t justified. The board recognized there was some danger in the employer’s workplace, but it wasn’t “ultra-hazardous” — such as a nuclear power plant. Without that higher level of danger, the employer had to prove there was an existing alcohol problem at the pulp and paper mill, much as it would if the workplace wasn’t particularly dangerous at all.

The New Brunswick Court of Queen’s Bench — and then the Court of Appeal after the employees’ union appealed — disagreed, finding there was no legal reason to distinguish between a dangerous and very dangerous workplace for the purposes of alcohol testing. Once a workplace is considered dangerous, the level of danger is unimportant and the employer should be able to take action to ensure its employees are sober, said the courts.

So does the level of danger in a workplace matter when it comes to safety procedures and alcohol testing? The New Brunswick Labour Board thought so, but two courts disagreed. Should the amount of caution and preventative measures an employer takes, or is required to take, be affected by the seriousness of the risks its employees face?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected]. For more information, visit www.employmentlawtoday.com.

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