On July 7, 2011 the New Brunswick Court of Appeal handed down a decision regarding an employer’s alcohol testing policy.
In Irving Pulp and Paper Limited v. Communications, Energy and Paperworkers Union of Canada Local 30, 2011 NBCA 58, the Court found that the random alcohol testing policy in the case was reasonable.
In 2006, Irving Pulp and Paper (“Irving”) had introduced a policy that allowed for unannounced random alcohol testing for employees in safety sensitive positions at the paper mill. The tests were to be done via breathalyser and the employees tested were selected by an off site computer that randomly chose 10% of those in safety sensitive positions in any 12 month period.
The proceedings began as arbitration. The grievor had been subjected to a random alcohol test and passed, but felt degraded by the experience. The Union grieved on his behalf on the grounds that there was not a significant enough history of alcohol related incidents in the workplace to justify such random testing.
At arbitration, the Board concluded that although the workplace was dangerous, it was not so dangerous as to justify random testing. The Board ruled that in order to justify testing in the absence of danger, it would have to be established that there had been a significant number of alcohol related incidents in the past. As there was not, random alcohol testing was not justified.
The New Brunswick Court of Appeal found that the Board had erred in trying to distinguish different levels of dangerousness. They found that once a workplace was found to be inherently dangerous, as long as the testing was minimally intrusive and only applied to those in safety sensitive positions, random alcohol testing could be justified. Accordingly, the grievance was ultimately dismissed.
The Court of Appeal offered a useful discussion on what constitutes a dangerous workplace and noted that the following types of workplaces had already been found to be considered dangerous:
Mining operations, oil refineries, manufacturing plants involving the use of chemicals, warehousing distribution facilities using heavy duty industry vehicles, nuclear power plants, chemical plants, airlines, and railway operations.
The Court conducted a survey of the existing jurisprudence upon this issue, and identified the differing trends between the cases arising out of Alberta, Ontario, and New Brunswick. The Court noted that random alcohol testing had gained “early acceptance” in the caselaw once testing was restricted to employees holding safety sensitive positions and the testing was done by breathalyser. As such, this meant that the only question in such circumstances was whether or not the workplace in question was one that was sufficiently dangerous. The Court as such then ruled that:
Evidence of an existing alcohol problem in the workplace is unnecessary once the employer’s work environment is classified as inherently dangerous. Not only is the object and effect of such a testing policy to protect the safety interests of those workers whose performance may be impaired by alcohol, but also the safety interests of their coworkers and the greater public.
Accordingly, with regard to alcohol testing, the New Brunswick Court of Appeal appears to have simplified the approach. Once an employer has demonstrated that their workplace is inherently dangerous, and that the testing is for alcohol related impairment and done by breathalyser, random alcohol testing will be justified.
This does leave the issue of drug testing still unresolved, but I suggest that the trend in the case law certainly seems to be more lenient in allowing for random testing. It is likely the case that requirements regarding drug testing will also soon be relaxed.
Andrew D. Taillon
Cox & Palmer
Barrister & Solicitor