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EMPLOYMENT LAW
Jan 29, 2013

Getting testy over random testing

Workplace drug and alcohol testing continues to stir controversy as Canada’s top court considers the issue
    

By Jeffrey R. Smith

Employees who consume drugs and alcohol just before or during work are a big concern for employers, particularly in circumstances where a misstep by an employee can lead to serious safety or business consequences. But controversy continues to rage between those who think random testing is necessary to ensure intoxicants don’t affect the workplace and those who think it’s too much of an intrusion on employee privacy rights.

In an earlier blog, I mentioned an ongoing case involving Irving Pulp and Paper in New Brunswick. The company tried to implement random testing for employees in safety sensitive positions and was challenged by the union. The case has gone through various levels of the judicial system:

•An arbitration board ruled random testing was too intrusive and there needed to be a significant history of accidents to warrant testing. An “ultra-dangerous” workplace would require less of a history.

•The New Brunswick Court of Queen’s Bench quashed the board’s decision, agreeing with Irving that a workplace with any risk shouldn’t have to wait until there were accidents to implement preventative testing.

•The New Brunswick Court of Appeal agreed with the lower court, finding Irving’s workplace held a danger to both employees and the public if there was an accident due to the use of dangerous chemicals and equipment, and it was reasonable to have a random testing policy to prevent such accidents.

Now, this case has gone before the Supreme Court of Canada, where several other parties have become involved on both sides of the issue.

Irving maintained its argument that its workplace presented a danger to employees and people who lived near its plant if an employee was intoxicated and made a bad mistake. It also argued the testing was done with minimal intrusion with devices similar to roadside breathalyzers. One of the intervenors, the Canadian Mining Association, backed up Irving with the additional rationale that random testing was not necessarily to detect impairment, but rather as a deterrent and to detect safety risks.

An intervenor on the opposing side, the Power Workers’ Union, argued: “Taking of bodily fluids, in any form, is invasive.” The Canadian Civil Liberties Association said: “Requiring individuals to choose between their privacy and their job has a serious impact on the individual’s ability to live a life of dignity … because work is fundamental to a person’s life, the conditions of psychological, emotional and physical elements of a person’s dignity and self-respect.”

So the debate continues. Do the benefits of random drug and alcohol testing outweigh the invasion of privacy it requires? Are the benefits real — can testing really catch those who might imbibe before or at work and determine if they’re actually impaired?

The Supreme Court has heard the arguments but has yet to make a final decision. But when it does, it’s unlikely it will end the debate.

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 jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.
    
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Getting testy over random testing
Wednesday, January 30, 2013 2:29:00 PM by Carolyn Schur
An employer is obligated to ensure a safe work environment and one aspect of this is to know that employees are not impaired. However, just focusing on drug and alcohol use is limiting since impairment due to sleepiness and fatigue can cause safety risk equal to drug and alcohol use. We can eliminate the privacy concerns caused by drug and alcohol testing by focusing on impairment. This requires a change in mindset but would be a better barometer of safety and risk.