Legal Eye: The details of the ruling on random alcohol testing

An employer cannot unilaterally implement random alcohol or drug testing even in a highly dangerous workplace absent a demonstrated workplace problem, a majority of the Supreme Court of Canada held today: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34

Irving Pulp & Paper Limited operates a kraft paper mill in Saint John, New Brunswick. In 2006, Irving implemented a “Policy on Alcohol and Other Drug Use” which, among other things, sought to introduce random alcohol testing by breathalyser for employees in safety sensitive positions. The company identified 334 employees that held such positions and planned to randomly test up to 10% of those employees each year. The union representing the workers, the Communications, Energy and Paperworkers Union of Canada, Local 30, challenged the policy. The majority of the arbitration panel hearing the grievance held that there were no reasonable grounds or a significant accident or incident which would justify the random testing sought by Irving.

Irving successfully sought judicial review of the arbitration decision: 2010 NBQB 294. The New Brunswick Court of Queen’s Bench quashed the decision, agreeing with Irving that the panel erred in law by finding that the mill did not fall within the classification of an ultra-dangerous operation. The Court of Queen’s Bench ruled that there was no such distinction in the law and that the proper question was whether the mill was an inherently dangerous work environment. The Union appealed unsuccessfully to the New Brunswick Court of Appeal (2011 NBCA 58) and ultimately brought the present challenge to the Supreme Court of Canada.

A 6-3 majority of the Supreme Court of Canada, lead by Justice Abella, overturned the New Brunswick Court of Appeal determining that the employer failed to demonstrate that alcohol use at the paper mill created a safety risk sufficient to justify imposing random alcohol testing of its employees. The severe invasion of employee privacy outweighed the uncertain to minimal safety benefits gained through random testing. The fact that the workplace is dangerous, ultra-dangerous or highly safety sensitive does not, without evidence of a demonstrated problem with alcohol in the workplace, justify random alcohol testing.

The dissenting opinion, penned jointly by Justices Rothstein and Moldaver, would have affirmed the decisions of the courts below and quashed the decision of the arbitrator. In dissent, the court found that it was beyond question that the arbitrators hearing the grievance applied an evidentiary standard unknown to the law. The employer should not have to show that there is a “significant problem” or a “serious problem” and the employer need not show that the use of alcohol is tied or causally linked to an accident, injury or near-miss history. At paragraph 105:

In any case, to require that an employer tie alcohol use to actual incidents at the mill, as the board in this case did, is not only unreasonable, it is patently absurd.  The arbitral cases recognize that evidence of alcohol use at an inherently dangerous facility such as the Irving mill — where the impact of a catastrophic failure could extend well beyond the safety of workers — is “a problem” enough.

Despite dissenting views, there was consensus that in a dangerous workplace, employers are generally entitled to test employees who occupy safety sensitive positions without having to show that alternative measures have been exhausted if there is reasonable cause to believe that the employee is impaired while on duty (reasonable cause testing), where the employee has been directly involved in a workplace accident or significant incident (post-incident testing), or where the employee is returning to work after treatment for substance abuse (post-treatment testing). This case will certainly have an impact on Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., and Alberta’s Drug and Alcohol Risk Reduction Pilot Project (DARRPP) which was slated to begin in Alberta’s oilsands in late 2012. Employers will do well to ensure that random testing policies are introduced either through collective bargaining or after carefully gathering compelling evidence of alcohol use in the workplace. Watch this space for further developments and analysis.