Another nail in random testing coffin
Supreme Court of Canada leaves door open, but Irving case moves bar higher – and also proves random tests not necessary in most cases
Jul 2, 2013
By Todd Humber
The murky realm of drug and alcohol testing didn’t become much less cloudy when the Supreme Court of Canada denied Irving Pulp and Paper’s wish to randomly test 10 per cent of its workers for alcohol use. (Look for “Random drug testing off the table? Not really,” on page 1 of the July 15 issue of Canadian HR Reporter.)
There was no black-and-white answer from the top court in last month’s ruling, no easy blueprint for employers to follow who want to pursue random tests. But nor did the magistrates in Ottawa slam the door entirely on the idea of random tests.
Instead, the bar shifted — slightly upwards, by all accounts — when it comes to what will justify such a practice (or an intrusion, from the employee’s viewpoint) in the future.
We know Irving had eight incidents related to alcohol in a 15-year period. That certainly doesn’t sound like a lot — barely one incident per year.
We also know Irving ran its random testing program for 22 months. In that nearly two-year span, not a single employee tested positive for alcohol.
One could argue that’s a sign the program worked: Clearly, employees were completely deterred from drinking alcohol at work, or showing up inebriated, for fear they may be tested.
But one could also argue, and it’s a stronger point in these books, that random testing simply isn’t necessary at Irving. One incident a year? No positive tests in two years of testing? That’s hardly a track record showing a problem with alcohol in the workplace.
True, it only takes one idiot to show up work drunk to cause a major health and safety issue. Pulp and paper is a dangerous industry, and it wouldn’t take much of a lapse for someone to be seriously injured or killed on the job. Employers have a duty — and there’s no grey area here — to provide a safe working environment.
So it’s not surprising some employers may be frustrated in the wake of the ruling. Government, after all, has put the burden on them to provide a safe workplace, yet courts and arbitrators won’t let them use a powerful tool — random testing — that could undoubtedly prevent incidents.
If something were to happen in the future at Irving — or any employer, for that matter — involving a drunk employee, it would be tempting to point the finger at this ruling and say, “We tried. But you wouldn’t let us.”
But that’s not the point, and that ill-advised defense would certainly fail.
The point is there are plenty of other appropriate tools in the toolbox that need to be exhausted first before going to the extraordinary step of randomly testing all employees.
If there is indeed a serious problem in a workplace with drug and alcohol abuse, testing of employees is still on the table. In fact, as Duncan Marsden, a partner with Borden Ladner Gervais in Calgary emphasized, the Supreme Court has “now said reasonable cause testing is OK.”
In 2012, I wrote that it seemed irrefutable that some form of random drug and alcohol testing for employees would be entrenched in Canadian workplaces in the near future — though employers hoping for a blanket green light like employers in the United States will be disappointed.
I was wrong on the first part, but the second part holds truer than ever. In the murky realm of random testing, there will be no carte blanche in Canada. Each case will be weighed on its own merits. Even in cases where the green light is given, employers must remember the point is not to be punitive — it’s about safety and ensuring workers who struggle with addiction get the help they need.
Todd Humber is the managing editor of Canadian HR Reporter, the national journal of human resource management. He can be reached at firstname.lastname@example.org or visit www.hrreporter.com for more information.
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Todd Humber is the publisher and editor-in-chief of Canadian HR Reporter, the national journal of human resource management. Follow him on Twitter @ToddHumber