Drug and alcohol testing in the workplace, particularly randomized testing, has always been a grey area for employers. When is such testing permissible? When is it deemed reasonable in light of safety concerns? The Supreme Court of Canada has answered some of these questions after their long-awaited decision regarding randomized drug and alcohol testing in the case of Irving Pulp and Paper.
A decision seven years in the making
Back in 2006, Irving Pulp and Paper adopted a new policy on alcohol and drug use at its mill in New Brunswick. Because of the highly dangerous nature of the workplace, Irving decided to implement a random alcohol testing program as part of this new policy. This program required 10 percent of employees holding “safety-sensitive” positions to be randomly selected for unannounced breathalyser testing each year. In the event that the test came back positive, the employee could be subject to significant disciplinary consequences, including dismissal. The policy also stated that a failure to submit to testing was grounds for dismissal.
Having a testing program in place in such a dangerous workplace environment seems reasonable, doesn’t it? Well it must also be taken into account that, in the 15 years prior to the introduction of this new policy, there were only eight documented incidents of alcohol consumption or impairment at the mill. In addition to this, there were no accidents, injuries, or near misses connected to alcohol (source).
The case begins
The same year that the policy was implemented, a policy grievance was filed by the union challenging the without-cause aspect of the alcohol testing component and alleging that it was unreasonable. The grievance proceeded to arbitration. The arbitration board found that there was not sufficient evidence of an existing problem with alcohol use in the workplace, despite the dangerous nature of the work environment. In this case, the employee’s right to privacy superseded the benefits of the program. The board found the policy to be unreasonable and unjustifiable.
The matter then went to the New Brunswick Court of Appeal who rejected the union’s argument alleging that random and mandatory testing in a workplace is justified once the employer establishes that its workplace operations are inherently dangerous. In the eyes of this court, the policy was found to be reasonable.
Supreme Court’s final decision
After being bounced around without a final decision, the case was finally brought before the Supreme Court of Canada. In the end, the majority of Supreme Court judges agreed with the labour board in a 6-3 majority, which found that the mill did not have a serious safety problem associated with alcohol, and therefore did not have reasonable grounds for testing. However, with that said, the Supreme Court did say that there are cases in which employers in safety-sensitive work environments may be justified in implementing random alcohol testing. Specifically in cases when there is a safety risk in the workplace due to alcohol or a general problem with substance abuse exists.
The three judges that did not agree with the final decision noted that an employer should not be required to wait for a serious incident of loss to take proactive steps to mitigate risk. One of the judges said that “an employer does not have to wait for a serious incident of loss, damage, injury or death to occur before taking action. To require such a causal connection is not only unreasonable, it is patently absurd.”
Drug and alcohol testing in the workplace
So let’s get down to business. What does this decision mean for you as an employer? What do you need to know about workplace alcohol and drug testing programs?
Despite the decision made by the Supreme Court, there still remains a level of uncertainty when it comes to company drug and alcohol testing programs. Determine how “reasonable” it is in each unique case can be a bit subjective. The overall purpose of random testing, or just testing in general, is to reduce the risk of incidents and injuries caused by alcohol and drug use. If implementing a drug or alcohol test isn’t an option, look into alternatives that can help to reduce concerns about worker impairment and minimize potential safety risks. Health and Safety Ontario offers a few suggestions:
- Employee Assistance Programs (EAP)
- Drug education and health promotion programs
- Off-site counseling and referral services
- Peer of supervisor monitoring
Still not sure where to begin? Clear Path’s Health and Safety team provides training, policy development, and expertise to help you establish a culture of safety in your workplace.
Anna Aceto-Guerin, CHRP
Clear Path Employer Services
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