An employee’s right to ensure workplace safety versus an employee’s right to privacy—these competing rights have been present in the workplace for many years. On one hand, employers must be able to adopt policies to protect their workforce and abide by statutory health and safety obligations. On the other hand, employees expect that they will not be subject to intrusive policies that unreasonably infringe on their privacy expectations.
In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Limited, the Supreme Court of Canada (SCC) recently weighed in on how to balance these rights in the context of an employer implementing a drug and alcohol testing policy. In this case, a majority of the SCC favoured employees’ privacy rights. Key in the majority’s decision was that the employer could not demonstrate the necessary safety concerns to justify the inroads the random alcohol testing component of its policy made on employee privacy. As such, the testing was found to be unreasonable, in excess of management’s right to implement policies impacting the workforce and, therefore, unlawful.
In 2006, Irving Pulp & Paper Limited unilaterally adopted a Drug and Alcohol Policy at its Saint John, New Brunswick paper mill, a component of which entailed random alcohol (but not drug) testing via breathalyser of employees holding safety-sensitive positions (the Policy). Employee tests revealing a blood alcohol level concentration greater than 0.04% would warrant disciplinary action determined on a case-by-case basis, up to and including termination. Over a 15-year period, Irving had documented 8 incidents of alcohol consumption or impairment in the workplace. Fortunately, there had been no accidents, injuries or near misses due to intoxication.
The union grieved the random alcohol testing component of the Policy as an unreasonable exercise of management rights. The union did not grieve the rest of the Policy, which included drug and alcohol testing in the event that the employer had reasonable cause to believe an employee was impaired while on duty, when an employee was involved in a workplace incident and for the purpose of monitoring an employee’s return to work following voluntary treatment for substance abuse.
Although it was undisputed that the workplace was a dangerous one, the Board of Arbitration (who first heard the case) determined that the random alcohol testing was unreasonable. The Board concluded that, on the evidence, Irving had not demonstrated “any significant degree of incremental safety risk attributable to employee alcohol use” and that the harm to employee privacy and security of the person far exceeded the “limited” benefit arising from the random alcohol testing. As such, the need for the testing could not be justified.
On judicial review, the Board’s decision was set aside as unreasonable due to the dangerous nature of the workplace. The appeal was dismissed by the New Brunswick Court of Appeal, but was further appealed to the SCC.
The SCC’s ruling
In a ruling that divided the SCC 6 to 3, the majority applied a reasonableness standard of review to the Board’s decision, concluded that the decision had been a reasonable one and, therefore, upheld it.
The majority discussed the scope of an employer’s unilateral rule-making authority under a collective agreement, citing with approval the well-established KVP test, which provides that “any rule or policy unilaterally imposed by an employer and not subsequently agreed to by the union, must be consistent with the collective agreement and be reasonable”. The majority agreed with the Board that in the absence of satisfactory evidence of enhanced safety risks due to alcohol use—such as workplace accidents or a general problem with substance abuse among employees—the mere fact that a workplace is inherently dangerous cannot (on its own) justify the significant intrusion that random alcohol testing has on employee privacy. The majority concluded that the Board’s decision had been reasonable and allowed the appeal.
The dissenting opinion is worthy of comment.
The dissent, too, adopted a reasonableness standard of review but took issue with the majority’s approval of the evidentiary standard adopted by the Board, which was more stringent than that used in previous arbitration cases on the reasonableness of an employer’s random alcohol testing policy.
The dissent noted that there are important differences in the principles adopted in the arbitral case law with respect to random alcohol testing policies, random drug testing policies and policies that provide for reasonable cause drug and alcohol testing. The consensus regarding random alcohol testing policies in the arbitral case law, the dissent asserted, is that the employer must “demonstrate evidence of an alcohol problem in the workplace”—the requirement is not, as the Board had applied (and which the majority adopted), that the employer provide evidence of a “serious” or “significant problem” related to an actual alcohol-related experience of accident, injury or near-miss in the workplace.
Since the Board departed from the arbitral consensus without any explanation of its reasons for doing so, the dissent argued that the Board’s decision fell outside a reasonable range of outcomes and therefore ought not to have been followed.
While Irving does not produce an ideal result for employers who understandably see the safety and deterrence benefits that random alcohol testing provides, it is important to stress that Canada’s highest court has not prohibited such testing in its entirety. Rather, employers with dangerous operations who wish to unilaterally impose such a policy must adequately justify and substantiate the policy’s reasonableness through verifiable evidence that the workplace in question has problems with alcohol use. Testing where there is reasonable cause, post-incident testing and testing as part of a return to work generally remains permissible at Irving.
Nonetheless, the SCC’s decision leaves uncertainty regarding the quantum and nature of evidence that will be satisfactory to establish the reasonableness of a random alcohol testing policy. In light of such uncertainty, employers should continue to carefully document drug and alcohol-related incidents (and, indeed, all safety incidents) in the workplace and seek union consensus where possible. While we do not believe the SCC expects an actual serious safety incident to arise before a random alcohol policy will be reasonable, employers would certainly have preferred that the following passage from the dissent carried the day:
…to require that an employer tie alcohol use to actual incidents at the mill… 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.
Daniel Pugen and Lauren Cowl
Ontario Employer Advisor
Published with permission from McCarthy Tétrault LLP
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