Irving Pulp and Paper case dealing with random testing for employees in safety sensitive positions goes before Canada’s top court
Safety versus employee rights
On Dec. 7, 2012, the Supreme Court of Canada heard argument on the subject of random alcohol testing by employers in dangerous workplaces. The case arose from a union grievance and arbitration challenging the policy of Irving Pulp and Paper Limited in New Brunswick. The union had been successful in having the random alcohol testing by employers of certain “safety-sensitive positions” set aside as being unreasonable given the circumstances of the case in lower courts.
Norm Keith represented the Alliance of Manufacturers and Exporters of Canada (CME), one of several intervenors in the proceedings, in support of Irving Pulp and Paper’s position on random alcohol testing. Here is his take on the case and the issue in question.
An ongoing legal battle over whether a Canadian company should be allowed to randomly test its employees for alcohol and drug use that has taken the company and its union through arbitration and multiple court levels has made it to the Supreme Court of Canada.
The number of interveners that have joined the proceedings and the presence of the full nine-member panel of the Supreme Court indicated the court understood the issue was of critical importance to employers, unions, workers and the Canadian public.
Arguments in favour of random testing
Evidence from the arbitration decision was undisputed that Irving Pulp and Paper had a number of safety-sensitive positions, where an incident could cause hazards to workers. There could be an explosion, damage to the plant, work injury and fatalities, as well as serious environmental damage. There was also clear inference from the proximity of the plant to residential areas of Saint John, N.B., that members of the public were also potentially at risk if there was a major incident at the plant.
The arbitration board’s requirement that there needed to be evidence of an “ultra-dangerous” circumstance before random alcohol testing was permitted, was unreasonable given the level of hazard to workers, the plant, the environment and the public.
There was both expert testimony at the arbitration hearing and support in other research, literature and precedents that the deterrent effect of random alcohol testing was a significant and valid objective of the policy.
The implementation of the random alcohol testing program at the pulp and paper plant, in addition to its deterrent effect, would also be able to detect the use of alcohol, either before or during a shift, of a worker in a safety-sensitive program in the plant. This combined effect of deterrence and detection would add considerably to the safety culture, and a priority on prevention of workplace incidents, accidents and fatalities.
The dignity and privacy of workers at the dangerous workplace would be minimally interfered with, since the random alcohol testing procedure used a device comparable to that of a roadside breathalyzer test used in R.I.D.E. programs, which have been approved by the Supreme Court as being lawful and reasonable, and not in violation of the Charter of Rights and Freedoms.
The Canadian Mining Association — another intervener — took an even broader position when, in their written material, said “The Mining Associations submit that the distinction between alcohol and drug testing, at least in respect of the legality of random testing, is misplaced… The purpose of random testing (of both alcohol and drugs) is not to detect or improve impairment, but to reduce risk through deterrence and detection of safety risks.”
I argued on behalf of the CME that the strict legal duty on employers to take every reasonable step for the health and safety of workers included random alcohol testing. Since employers across Canada are now exposed to regulatory and criminal prosecution and penalties, senior executives exposed to fines and jail terms (and unions having no legal responsibility under occupational health and safety or criminal law for the safety of workers), it is incumbent on employers in dangerous workplaces to take every reasonable step available, including random alcohol testing, to ensure workers are safe. References to the due diligence standard in the Supreme Court decision City of Sault Ste. Marie, and the relatively recent Bill C-45 amendments to the criminal code — creating a new crime of occupational health and safety criminal negligence — placed a strict duty on employers to take every reasonable step. Random alcohol testing, to both deter and detect workers who go to work under the influence of alcohol, is an important step employers can take to comply with their legal duties.
Arguments against random alcohol testing
The union argued strenuously that arbitrators and courts across Canada have recognized employee rights to privacy, both supported by the charter and the common law for unionized workers. Therefore, unionized workers should have the right to not be involuntarily touched, searched or seized as a result of a reasonable expectation of privacy and dignity in the workplace.
A unilateral management policy, such as that of the random alcohol testing policy of Irving Pulp and Paper, is subject to the K.V.P. test, regarding the reasonableness of policies and rules that are not negotiated as part of a collective agreement, but rather are imposed unilaterally under a management rights clause in the collective agreement or the inherent right of management to manage and control its workplace.
Even with new testing technology, the union argued the ability of alcohol or drug testing to establish impairment at the time of testing does not eliminate the need for an employer to meet the threshold of reasonable cause prior to initiating testing. The union argued the employer “bears a heavy onus if it wants to justify random without cause testing.
In the Power Workers’ Union factum, in support of the union and opposing random testing in this case, the union said, “Taking of bodily fluids, in any form, is invasive and engages these rights… This is particularly so for compelled searches of a person’s body.”
The Alberta Federation of Labour, in support of the union and against random alcohol testing, said, “The New Brunswick Court of Appeal’s decision will have a devastating impact on the long-standing test labour arbitrators apply when assessing the reasonableness of an employer’s policy, particularly one that impacts in employees’ privacy, dignity and bodily integrity rights.”
The Canadian Civil Liberties Association, in support of the union and opposing the testing, 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,” and key to the psychological, emotional and physical elements of a person’s dignity and self-respect.
Final thoughts
Random alcohol testing is neither a cure-all nor a panacea to all problems associated with workers showing up intoxicated or consuming alcohol or drugs in their workplace. However, the importance of the deterrent effect, in addition to detection and acknowledgement of the problem, reasonably supports the position that in safety-sensitive positions in dangerous workplaces, random alcohol testing (and drug testing as well, given modern oral fluid technology for testing) is not only appropriate, but a reasonable step to protect worker safety. We need only provide several examples of the importance of preventing the impairment of workers by alcohol or drugs and their devastating effects on workers, their families and members of the public, to illustrate the point.
Irving Pulp and Paper’s argument was not that there should be widespread alcohol testing of every employee in every workplace. Simply asking for periodic, unannounced random alcohol testing, through a non-invasive means of breathalyzer seems to be a rather small, even trivial, intrusion of a worker’s sense of privacy, dignity and self-respect in the workplace. If workers are that sensitive, when they in fact have such serious responsibility for the health, safety and well-being of their fellow workers, the environment and the public, then there are arguments to be made that such a worker’s perception is wholly disrespectful of the safety of others.
The problem of alcohol and drugs in the workplace is not just an occupational risk, but one that effects society generally. The use of alcohol and drugs in universities, as well as its glorification in the media and on the streets, clearly impacts the attitudes, use and abuse by workers both before they attend workplaces, as well as when they are at work. There is clearly a need for a broader dialogue on alcohol and drug use in society.
The Irving Pulp and Paper case does not seek to impose widespread random alcohol testing on all workers. Such a program would likely be deemed excessive by even the most aggressive proponents of alcohol and drug testing in the workplace. However, it does give the Supreme Court the opportunity to provide comment, leadership and a decision with respect to the capability of an employer in a dangerous workplace to take the step of implementing a comprehensive substance abuse program that, among other important aspects, may include random alcohol testing.
