Supreme Court of Canada leaves door open, but Irving case moves bar higher – and also proves random tests not necessary in most cases
The murky realm of drug and alcohol testing didn’t become much clearer when the Supreme Court of Canada denied Irving Pulp & Paper’s wish to randomly test 10 per cent of workers for alcohol use. (See “Bar raised in random drug, alcohol testing.”)
There was no black-and-white answer from the top court in last month’s ruling, no easy blueprint for employers to follow. But it did not slam the door entirely on random tests. Instead, the bar shifted — slightly upwards, by all accounts — when it comes to what will justify such a practice.
We know Irving had eight incidents related to alcohol in a 15-year period, which doesn’t sound like a lot. And we know Irving ran its random testing program for 22 months and not one employee tested positive.
One could argue that’s a sign the program worked: Employees were deterred from drinking alcohol at work or showing up inebriated, for fear they may be tested. But one could also argue, and it’s a stronger point, that random testing simply isn’t necessary at Irving. One incident per year? No positive tests in two years of testing? Zero safety incidents connected to alcohol? That’s hardly a track record showing a problem with alcohol.
True, it only takes one idiot to show up at work drunk to cause a major health and safety issue. Pulp and paper is a dangerous industry and it wouldn’t take much of a lapse for someone to be seriously injured or killed on the job. Employers have a duty — and there’s no grey area here — to provide a safe working environment.
So it’s not surprising some employers may be frustrated in the wake of the ruling. Government has put the burden on them to provide a safe workplace, yet courts and arbitrators won’t let them use a powerful tool — random testing — that could prevent incidents.
If something were to happen at Irving — or any employer — involving a drunk employee, it would be tempting to point the finger at this ruling and say, “We tried but you wouldn’t let us.”
But that’s not the point, and that defence would certainly fail because there are other tools that need to be exhausted first before going to random testing. If there is a serious problem with drug and alcohol abuse, testing of employees is on the table. As Duncan Marsden, a partner at Borden Ladner Gervais in Calgary said, the Supreme Court has “now said reasonable cause testing is OK.”
In 2012, I wrote that it seemed irrefutable that some form of random testing for employees would be entrenched in Canadian workplaces in the near future — though employers hoping for a blanket green light like in the United States will be disappointed.
I was wrong on the first part, but the second part holds truer than ever — there will be no carte blanche in Canada. Each case will be weighed on its own merits. Even if a green light is given, employers must remember the point is not to be punitive — it’s about safety and ensuring workers who struggle with addiction get the help they need.