Significant safety concerns intrude on employee privacy reasonable: Federal Court of Appeal
A recent decision of the Federal Court of Appeal in Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182, addressed the validity of pre-placement and random alcohol and drug testing imposed by the Canadian Nuclear Safety Commission as a license condition to operate high security nuclear facilities.
The general rule is that employers may only require drug and alcohol testing of employees who are working in “safety-sensitive” positions. Whether or not a position is “safety-sensitive” depends on the specific factual circumstances and the nature of the workplace. One of the key factors in determining whether an employee’s position is safety-sensitive is the extent to which an employee’s impairment would place the physical safety of that employee, other people, or property at risk.
Even where a position is safety-sensitive, testing is generally only permissible in limited circumstances. At its most basic, these permissible categories include testing:
Drug and alcohol testing has generally been held to be impermissible for employees who do not work in safety-sensitive positions. Courts and tribunals have held that to refuse employment or to discipline an employee only because of positive drug or alcohol test results may constitute discrimination on the basis of disability (such as addiction).
The issue before the Federal Court of Appeal in Power Workers’ Union was the validity of pre‑placement and random drug testing imposed by the Canadian Nuclear Safety Commission as a condition for licenses to operate high security Class I nuclear facilities. The requirements impacted “safety critical positions” that had the most direct and immediate impact on nuclear safety and security and Class I facilities, and represented less than 10 per cent of workers.
Six workers and their unions claimed that the pre-placement and random testing requirements breached their rights under ss. 7, 8 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982. Their challenge was rejected on all grounds by the application judge and was then appealed to the Federal Court of Appeal on the same grounds, with the addition of a number of administrative grounds concerning the underlying decision.
The Federal Court of Appeal considered the legislative framework and circumstances of the nuclear power industry and dismissed all grounds of appeal, upholding the testing.
Section 8 of the charter provides that “everyone has the right to be secure against unreasonable search or seizure.” To determine whether the search or seizure was unreasonable, the court engaged in the two-step test analysis for alleged s. 8 violations, as follows:
On the first stage of the test, the application judge held that workers had a reasonable expectation of privacy but that it was diminished in the circumstances.
The Court of Appeal found that a “reasonable expectation of privacy” is a normative concept that corresponds to the level of privacy that we as a society can reasonably expect in a given circumstance. Accordingly, a person’s subjective expectation of privacy must be objectively reasonable in the circumstances.
The Court of Appeal upheld the application judge’s finding that the safety-critical workers had a diminished expectation of privacy given the nature of their work and work environment. The court held that the nuclear industry is unlike other inherently dangerous industries, given the severity and magnitude of damage that can be caused by a nuclear incident.
In light of the nature of the test, highly regulated nature of the workplace, and reduced expectation of privacy of safety-critical workers, the court concluded the intrusion was reasonable.
The Federal Court of Appeal upheld the application judge’s determination that s. 7 of the charter, which establishes the right of everyone to life, liberty and security of the person, was not engaged. The court concluded testing was relatively non-invasive and would not objectively have a serious and profound impact on any individual’s psychological integrity so as to trigger s. 7.
The Federal Court of Appeal also upheld the application judge’s determination that s. 15 of the charter, which establishes that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, was not contravened by the testing restrictions. The restrictions created a distinction based on job categories, not an enumerated or analogous ground of discrimination, and there was no evidence for the application judge or the court to conclude that the restrictions created or contributed to a disproportionate impact on workers suffering from a drug or alcohol dependency.
Although the decision concerned the application of a regulatory requirement - and not a workplace policy - the decision highlights that context is key when defining a worker’s right to privacy in the workplace. This principle can also be considered by employers when considering, developing or implementing a drug and alcohol testing policy in the workplace.
The Federal Court of Appeal’s decision emphasized the unique and highly regulated context of the nuclear power industry in its decision and may have limited application elsewhere. Only time will tell if this decision is a stepping stone towards a potential expansion of random testing.
Brent Matkowski is a partner in the labour and employment group at MLT Aikins in Saskatoon. Zoe Johansen-Hill is an associate lawyer in the advocacy department at MLT Aikins in Saskatoon.
