Testing permitted only in instances of 'enhanced safety risks'
On June 14, the Supreme Court of Canada released its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper Ltd.
In this much anticipated decision, the Supreme Court clarified the law regarding random alcohol and drug testing in safety-sensitive, unionized workplaces, finding universal random testing will only be permitted where employers can show “evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.”
The policy
The employer, Irving Pulp and Paper, operates a kraft paper mill in Saint John, N.B. It was agreed by all parties the mill was a safety-sensitive work workplace. A safety sensitive workplace is one in which an incident or accident could have significant adverse impact on the health and safety of employees or the public and significant adverse environmental impacts.
In 2006, Irving unilaterally implemented a “Policy on alcohol and other drug use.” The policy included drug and alcohol testing for employees holding safety-sensitive positions within the workplace, but was tailored to respect employee privacy concerns. It permitted reasonable cause testing, post-incident or near-miss testing and random testing as part of a return to work program after treatment for substance abuse.
The policy also contained a universal random alcohol testing component. There was not a universal random drug testing component. Under the universal random alcohol testing component, 10 per cent of the employees in safety-sensitive positions were to be randomly selected for unannounced breathalyzer testing over the course of each year.
The grievor was selected as part of this random testing. He had not consumed alcohol since 1979 and the breathalyzer test revealed a blood alcohol level of zero. The union filed a grievance on his behalf, challenging the universal random alcohol testing aspect of the policy only.
The arbitration decision
The majority of the arbitration panel found the mill was an inherently dangerous work environment. Nevertheless, the majority also found Irving needed to establish the need for random testing as a proportional response that balanced health and safety risks with employee privacy rights. The majority found the universal random alcohol testing aspect of the policy could not be justified.
On judicial review, the New Brunswick Court of Queen’s Bench applied a standard of review of “reasonableness” and found the arbitration decision was unreasonable in light of the dangerous nature of the workplace.
Upon further appeal, the New Brunswick Court of Appeal found the determination by the arbitration panel that the mill was an inherently dangerous workplace was sufficient in itself to support a policy of universal random alcohol testing. Thus, the Court of Appeal agreed the decision of the arbitration panel should be quashed, and Irving’s policy upheld.
The Supreme Court decision
In a 6-3 decision, the Supreme Court of Canada reversed the decision of the Court of Appeal. Justice Abella wrote that decision-makers ought to apply a “balancing of interests” approach when reviewing alcohol and drug testing policies in a unionized, safety-sensitive workplace. Under this approach, the employer’s safety concerns must be balanced with the employees’ rights to privacy.
The majority determined that the “blueprint” for dealing with drug and alcohol testing policies in unionized, safety-sensitive environments was outlined by arbitrator Michel Picher in Re Imperial Oil and C.E.P., Local 900 (“Nanticoke”). While the Nanticoke decision focused on drug testing, the majority applied the blueprint to its review of the universal random alcohol testing policy in this case. Based on the Nanticoke analysis, the majority endorsed the following principles in determining the reasonableness of an employer’s drug and alcohol testing policy in a unionized, safety-sensitive environment:
• No employee can be subjected to random, unannounced alcohol or drug testing, except as part of an agreed rehabilitative program.
• An employer may require alcohol or drug testing of an individual where the circumstances give the employer reasonable cause to do so.
• Employers may require alcohol or drug testing following a significant incident, accident, or near miss where it may be important to determine the root cause of what occurred.
Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have a substance abuse problem. As part of an employee’s rehabilitation and return to work program, workplace parties may agree that the employee undergo random, unannounced drug or alcohol testing for a period of time.
The decision also referred to a previous arbitration, which found that universal random alcohol testing will be upheld as reasonable where the employer can demonstrate there was a “general problem” with use or abuse of alcohol or drugs in the workplace. Nevertheless, on reviewing the evidence, Justice Abella also found the arbitration panel reasonably concluded that Irving’s evidence of eight incidents of alcohol consumption on the job in 15 years did not sufficiently demonstrate “enhanced safety risks” so as to justify the universal random alcohol testing component of the policy.
As a result, the majority of the court upheld as reasonable the arbitration panel’s decision that the adoption of a universal, random alcohol testing policy was an unreasonable exercise of Irving’s management rights under the collective agreement.
Implications
The Irving decision will have implications for employers and employees who operate or work in unionized, safety-sensitive workplaces.
Employers’ policies can continue to provide for the types of testing outlined in the decision of arbitrator Picher.
However, because of the way the majority framed its analysis — focusing on both alcohol and drug testing generally in unionized, safety-sensitive workplaces — the Irving decision affirms that universal random drug or alcohol testing will be permissible in only very limited circumstances.
In the usual case, an employer will need to show something more than just the inherent safety risks in the workplace. The majority’s reasons strongly suggest the “enhanced safety risks” will typically relate to a sufficiently serious drug or alcohol problem in the workplace.
The majority did leave open the possibility that the nature of some workplaces may permit random testing based on the inherent danger in the workplace itself, but also suggested that this would only occur in “extreme circumstances.”
In terms of non-unionized workplaces, the implications of the Irving decision are less clear. At the outset of its reasons, the majority found the principles applied under human rights statutes to testing in non-unionized workplaces did not provide much assistance for the analysis undertaken by arbitrators in unionized workplaces which involves balancing competing privacy and safety interests.
Since many of the non-union cases have arisen under human rights legislation, they entail an analysis of whether a policy is discriminatory, typically on the basis of disability. The question of whether such policies are discriminatory is not entirely settled in light of case law developments. What remains to be seen is whether the analytical framework applied in the unionized context will begin to be applied more regularly in the non-union context in an attempt to develop a more consistent analytical approach to testing.
Kathryn Bird is an associate lawyer with Hicks Morley in Toronto. She can be reached at (416) 864-7353 or [email protected].
