Testing policy applies to positions where risk to employees or environment exists
A New Brunswick company should be allowed to use random drug and alcohol testing for safety-sensitive positions, the New Brunswick Court of Queen’s Bench has ruled.
In 2006, Irving Pulp and Paper, based in Saint John, N.B., implemented a policy allowing for unannounced random drug and alcohol tests for employees in safety-sensitive positions and those returning to or starting a safety-sensitive position had to first pass a test.
Perley Day, a millwright in the maintenance department at Irving’s Saint John mill, was considered to be in a safety-sensitive position under the policy. On March 13, 2006, he was selected for a random breathalyzer test during his shift. Day, who was religious and said he hadn’t had a drink in 27 years, felt humiliated and degraded by the notification and testing process.
The union grieved the policy, arguing there “was no reasonable grounds to test or incident which would justify such a measure” and the ability to conduct random tests should depend on the history of safety in the workplace rather than the level of danger in the plant.
In November 2009, the majority of the New Brunswick Labour Board upheld the grievance, finding random drug and alcohol testing wasn’t necessary and was too intrusive. The onus was on the employer to demonstrate a history of alcohol-related incidents to prove the level of risk in its workplace justified random tests, it said.
However, evidence showing five incidents where Irving employees came to work while intoxicated over 15 years wasn’t sufficient to demonstrate such a pattern, found the board. An employer engaged in an “ultra-hazardous endeavour” would have less of an onus to justify testing because of the increased risk, said the labour board.
Irving appealed the decision to the New Brunswick Court of Queen’s Bench, arguing the board’s decision created a new category of “ultra-dangerous operations” for which random testing was acceptable, rather than the “safety-sensitive” conditions established in previous decisions such as the 2000 case Entrop v. Imperial Oil Ltd. In that case, the Ontario Court of Appeal found a non-unionized employer’s random drug and alcohol testing policy was a bona fide occupational requirement for safety-sensitive positions.
Irving Pulp and Paper also argued that using only past incidents to justify “a vigilant and balanced policy of drug and alcohol detection” was a reactive rather than a proactive approach resulting in safety measures that would be too late.
Irving’s policy was reasonable since the random testing applied only to those positions where there was a risk to employees and the environment, which made it “minimally intrusive,” found the court.
Irving’s work environment was an “inherently dangerous work environment,” it said, and drug testing was important to the company’s efforts to reduce the risk. The breathalyzer test was less intrusive than other methods, which made it more acceptable and had less impact on privacy.
The court also agreed with Irving that using a history of accidents to justify random drug testing was not logical and found the board’s decision on this point was also unreasonable. Requiring a history of accidents in a dangerous workplace before implementing random alcohol testing was essentially asking the employer to wait until something bad happened before taking proactive steps to prevent it, said the court.
“There is, unquestionably, a threshold that exists somewhere between a dangerous workplace such as the Irving mill and an office environment, for example, below which an employer must show a history of accidents to justify such a policy,” said the court.
“It is not reasonable to establish that threshold above the level of a workplace as dangerous as the Irving mill such that only workplaces that are in the category of ‘ultra dangerous’ are permitted to proactively implement such a policy without a history of accidents.”
The court overturned the labour board’s decision and reinstated Irving’s random drug and alcohol testing policy.
For more information see:
•Irving Pulp & Paper Ltd. v. C.E.P., Local 30, 2010 CarswellNB 494 (N.B. Q.B.).
•Entrop v. Imperial Oil Ltd., 2000 CarswellOnt 2525 Ont. C.A.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.
