Bar raised in random drug, alcohol testing

Supreme Court of Canada rules in favour of union, but case is ‘fact-specific’: Lawyer
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 07/14/2013

The supreme court of Canada may have ruled against an employer in a landmark case involving random alcohol testing, but the practice is far from dead — the rules have just been tweaked a bit, according to experts.

In June, the top court sided with the Communications, Energy and Paperworkers Union of Canada (CEP) over a grievance it filed against random alcohol testing conducted by Irving Pulp & Paper.

In 2006, the company had unilaterally adopted a policy — under the collective agreement’s management rights clause — that imposed testing for employees in safety-sensitive positions at a paper mill in Saint John, N.B., including a random alcohol testing component for 10 per cent of workers.

While one employee in particular was cleared by the test, the union filed a grievance on his behalf that made its way to the Supreme Court of Canada — which clarified, somewhat, the delicate balance between safety and privacy.

“The easy headline on this one would be ‘Bad news for employers.’ But, actually, if you look a bit deeper than that, I think this is very fact-specific and there are certainly comments in here made by the Supreme Court which would assist employers when they’re looking to justify this kind of policy,” said Duncan Marsden, a partner in the labour and employment group at Borden Ladner Gervais in Calgary.

The company had eight documented incidents of alcohol consumption or impairment at the mill for the 15 years up to 2006, but no accidents, injuries or near misses connected to alcohol use. And no employees tested positive during the 22 months the policy was in place.

As a result, in 2008, the arbitration board felt the absence of any real risk related to alcohol meant there was little benefit to random testing. And weighing the safety concerns against the harm to employee privacy, it concluded testing was unjustified.

After Irving appealed that decision and won, the union took it to the New Brunswick Court of Appeal, which also ruled in favour of the company, concluding that no “balancing of interests” was required at a dangerous workplace.

The union then appealed that ruling to the Supreme Court of Canada. And the top court disagreed with the lower courts, saying the dangerousness of a workplace, while clearly relevant, does not shut down the inquiry and begins the proportionality exercise: “It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences.”

A new test

It’s really about a new test and a higher bar, according to Larry Page, a lawyer in the employment and labour law group at Davis in Vancouver.

“It’s a bit of a surprising decision because it does change the test that had been fairly well-accepted in arbitration awards.”

The old test meant an employer had to show evidence of an alcohol or drug problem in order to institute a program of random testing, he said.

“You did not have to wait until somebody was injured or killed and then show a link between those two,” said Page.

“(This decision) imposed a more rigorous test which was that you have to show a ‘general problem’ with substance abuse — and the court said that the eight incidents in 15 years did not show a general problem.”

Basically, if an employer has a dangerous workplace, it has to figure out if there are enhanced safety risks that would justify this intrusion on privacy rights, said Marsden.

“In this case, (the court) decided that there wasn’t this extra step. They recognized it was a dangerous workplace but there weren’t enhanced safety risks because there was no evidence of a general problem of alcohol abuse.”

But it’s not clear what exactly that means, said Page.

“It’s being left for labour arbitrators on a case-by-case basis to decide whether an employer has demonstrated a general problem, and this will all eventually come back to court in another case — and maybe the test gets refined a bit.”

However, there’s not that much new to the Supreme Court decision, according to Daniel Leger, a partner at Pink Larkin in Fredericton acting for CEP.

“I view this decision as more of a confirmation that the existing arbitration case law that’s well-established is not out of line and, in fact, it’s well in line with the established case law.”

However, the Supreme Court did not say an employer can never impose random testing at a dangerous workplace.

“If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified,” it said.

This is one of the positives for employers, said Marsden.

“The Supreme Court of Canada has now said reasonable cause testing is OK.”

It’s about facts-based analysis and employers establishing a real problem with respect to alcohol or drugs, said Leger.

“That’s where case law is: It needs to be reactive versus proactive.”

Management rights clause

A legal issue at the heart of the case was the interpretation of the management rights clause of a collective agreement, said the Supreme Court of Canada.

The arbitration board had concluded the expected safety gains to Irving ranged from uncertain to minimal while the impact on employee privacy was severe, so “the employer exceeded the scope of its rights under the collective agreement,” said the court.

Irving took the position that it alone was responsible for the health and safety of employees, said Leger.

“When it comes to dealing with serious privacy concerns in health and safety, the best approach is one where the worker and employer are working together,” he said.

“Essentially, that’s what the case boiled down to: Employee privacy rights versus an employer’s thought that it’s really in charge of managing safety all on its own.”

Supreme court

Dissenting commentary

Three Supreme Court of Canada judges in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. expressed dissenting opinions about the arbitration board’s original ruling in favour of the union.

They said it “departed from arbitral consensus that has attempted to strike a balance between competing interests in privacy and safety in the workplace… In so doing, it came to an unreasonable decision.”

The board applied the standard of a “significant” or “serious” problem, which does not reflect arbitral consensus for justification of a random alcohol testing policy, said the dissenters. It also required the alcohol use to be linked to the accident, injury or near miss history at the plant, when there is no support for such a requirement in the arbitral jurisprudence.

The dissenters also said it might be a good idea to reassess the legislative choice to delegate policy-making for drug and alcohol testing to the collective bargaining process and arbitrators.

“It is one thing for employers and employees to negotiate a balance as they see fit with respect to their own privacy and safety. It is a different matter, however, to leave the public interest to the vicissitudes of the bargaining table.”

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