Appeal courts overturn arbitration board’s distinction between levels of danger and need to prove pre-existing problem
Courting danger
There has been a lot of back-and-forth between courts and arbitrators in different regions of Canada regarding the acceptability of random, mandatory testing of employees for drug and alcohol use. Concerns about employee privacy have faced off against those of workplace safety over what’s more important.
It’s become more likely in recent decisions to have certain testing allowable if there are genuine concerns for employees in safety-sensitive positions where impairment could cause a hazardous situation. But an arbitration board in New Brunswick drew another line against an employer’s alcohol testing policy. Its distinction between a dangerous workplace and an ‘ultra-dangerous workplace’ stirred up more potential headaches for employers and a trip to the New Brunswick Court of Appeal to resolve the issue.
A New Brunswick paper mill can follow a policy of mandatory random alcohol testing for employees because its workplace is dangerous enough to justify proactive rather than reactive measures, the New Brunswick Court of Appeal has ruled.
Irving Pulp and Paper operated a kraft paper mill on the St. John River in New Brunswick that specialized in converting wood into wood pulp. On Feb. 1, 2006, Irving adopted mandatory random drug and alcohol testing for employees who worked in safety sensitive positions. These positions were defined in the policy as positions “which the company determines has a role in the operation where impaired performance could result in a significant incident affecting the health and safety of employees, customers, customers’ employees, the public, property or the environment.”
The random part of the testing was achieved by having a computer select names from a list of 334 employees who worked in safety sensitive positions and those selected were required to take a breathalyzer test. In any 12-month period, 10 per cent of the employees on this list were selected and there were equal chances of anyone being selected each time, regardless of whether a name had been selected before. Anyone with a blood alcohol level over 0.04 per cent would subject to discipline on a case-by-case basis.
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On March 13, 2006, an employee named Percy Day was selected for testing. Day agreed to the test because a refusal would result in discipline, but he did not consume alcoholic beverages for religious reasons. After he passed the test, the union filed a grievance on his behalf challenging Irving’s right to test employees for alcohol use without cause.
An arbitration board found for the testing to be reasonable, Irving had to show that there was sufficient risk that alcohol abuse was a danger in its workplace. The board determined the paper mill was a dangerous work environment in which an accident could have serious safety repercussions, due to the industrial nature of the workplace and the presence of hazardous chemicals. However, evidence showed there were five incidents over the previous 15 years in which an employee showed up for work under the influence of alcohol. In addition, there had been no positive tests since random testing had been implemented.
As a result, the board found there wasn’t a “significant problem with alcohol-related performance at the plant” or safety risk. Therefore, there wasn’t enough of a need for a policy of random alcohol testing that trumped employees’ right to privacy, said the board.
Courts disagreed with separate definition of ‘ultra-dangerous’ workplaces
Irving appealed to the New Brunswick Court of Queen’s Bench, which found the board’s decision required a history of accidents in a dangerous workplace to justify random alcohol testing. This requirement, said the court, was unreasonable because it meant Irving would have to wait until “a catastrophe” occurred before it could take measures to prevent it, resulting in a reactive rather than a pro-active policy that could result in serious consequences. The court also noted that the board had recognized the paper mill was a dangerous workplace but not dangerous enough to warrant random alcohol testing, resulting in a distinction between a dangerous workplace and an “ultra-dangerous” one, which was also unreasonable. The court set aside the board’s decision and dismissed the appeal.
“The board held that Irving had failed to establish a ‘sufficient case’ that its kraft mill could be placed in the same ultra-dangerous category of risk such as a ‘nuclear plant, an airline, a railroad or a chemical plant,’” said the court. “In my view, the finding that a kraft mill does not fall within the same dangerous category as a railroad or chemical plant is simply ‘unreasonable.’”
The union appealed the Court of Queen’s Bench decision to the New Brunswick Court of Appeal, arguing that mandatory random drug and alcohol testing has been largely rejected in Canada as an implied right of employers under collective agreements, and such testing has generally only been allowed if a pre-existing problem exists, unless the workplace is particularly dangerous.
The Court of Appeal disagreed with the union’s assertion that arbitrators have rejected mandatory alcohol testing for employees in safety-sensitive positions. It noted that random and unannounced drug testing had been rejected, but drug testing was different than alcohol testing. Most drug testing, such as that for marijuana, detected the remnants of past use even if the drug had been used days before but a small amount remained in the system. It couldn’t detect whether the subject was impaired or not at the time. Since this couldn’t determine impairment, could punish employees for actions outside of work and violated employee privacy, drug testing was not ruled as reasonable by arbitrators.
However, random alcohol testing with a breathalyzer was a different story. The appeal court referred to the 2000 Ontario Court of Appeal decision in Entrop v. Imperial Oil Ltd., in which the court found alcohol testing could be a bona fide occupational requirement if the goal of the testing was to “deter and detect alcohol impairment among its employees in safety sensitive jobs” and could accommodate the employee’s circumstances if the test is positive.
The Court of Appeal acknowledged that all drug and alcohol testing was generally frowned upon by arbitrators and courts early on, but drug testing more so because of its uncertainty towards showing actual impairment. However, alcohol testing “gained early acceptance once testing was restricted to employees holding safety sensitive positions and the testing would be by breathalyzer,” said the Court of Appeal.
The appeal court also noted that past decisions stipulated that evidence of an existing alcohol problem in the workplace wasn’t necessary if the work environment was classified as inherently dangerous. Though the arbitration board had identified Irving’s paper mill as dangerous but not ultra-dangerous — making alcohol testing reasonable — the court said there was no such distinction in reality. The board’s finding that the mill was a dangerous work environment should have been enough to warrant an alcohol testing policy without Irving having to prove an existing problem, said the court.
The appeal court noted that chemical plants and railway operations have been classified as inherently dangerous work environments because they use hazardous chemical. However, Irving used several such chemicals in its paper mill and its employees were responsible for handling them. The mill also had a pressure boiler which had a “high potential” for explosion.
“It is not difficult to support the contention that Irving’s kraft paper mill qualifies as an inherently dangerous workplace as would a chemical plant,” said the Court of Appeal. “This is why evidence of an existing alcohol problem in the workplace was not required to support its policy of random alcohol testing. This is why the arbitration board’s decision cannot stand and the application judge was correct in determining that its decision should be set aside and the grievance dismissed.”
The court dismissed the grievance and awarded costs to Irving.
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