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Supreme Court caps random testing of employees

Top court traditionally has final word, but split in previous decisions may not mean an end to the argument

By Jeffrey R. Smith

The legal saga of random drug and alcohol testing of employees in Canada has been ongoing for quite a while.

Various courts across the country have come to differing conclusions, leaving a confusing and battle-scarred landscape in employment law. The fight between employer concerns for safety and employee concerns for privacy and discrimination has continued for years, but it looks like there may now be a final word on the subject — and that word, for employers, is “no.”

I’ve discussed the argument relating to workplace drug and alcohol testing and the related issues — such as how important is safety and proactive versus reactive measures — a couple of times in this space already, but it’s worth raising it to the forefront again now that the Supreme Court of Canada has weighed in.

On June 14, Canada’s top court released its ruling in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., a case that has gone through arbitration followed by appeals to two levels of New Brunswick courts before landing in the Supreme Court’s lap.

Each of the courts came to a different conclusion than the original arbitration, but now the top court has ruled the arbitration board was right all along — random alcohol testing is not allowed without proof of an existing alcohol problem in the workplace. The existence of danger in a workplace itself does not warrant a random testing program, said the Supreme Court.

Though the Supreme Court ultimately has the final say on the issue, the disagreement with the two appeal courts shows it’s not an easy issue to address and there are legitimate arguments on both sides.

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

On appeal, both the New Brunswick Court of Queen’s Bench and Court of Appeal found it was reasonable for testing on a proactive basis where there was a potential danger to employees and the public — which there was at Irving’s pulp and paper plant due to chemicals and machinery. The Supreme Court sided with the arbitration board, finding a dangerous workplace was only the beginning of weighing the privacy interests of employees against safety in the workplace and did not grant an automatic right to the employer to implement random testing.

After many years and many conflicting legal decisions, is this the end of the argument on random drug and alcohol testing of employees? Should it be?

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.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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