Canada: Safety-Critical Workers Have Diminished Expectation of Privacy in Drug Testing

Canada’s Federal Court of Appeal issued a decision that may bolster the case for pre-placement and random alcohol and drug testing for workers in safety-critical roles. Courts and arbitrators have long held that such testing is only permissible when safety considerations outweigh the privacy interests of workers subjected to testing.

In Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182, the Court of Appeal held that employees in safety-critical positions have a “diminished expectation of privacy” as it relates to testing. A lesser privacy interest may mean testing is easier to justify for safety-critical roles.

Background

Power Workers’ Union involved determining the validity of pre-placement and random alcohol and drug testing imposed by the Canadian Nuclear Safety Commission as a licensing requirement for entities operating high-security nuclear facilities. The testing is aimed at employees in “safety-critical” positions, which make up roughly 10% of the workforce at such facilities.

The appellants, six affected workers and their unions, challenged this mandatory testing. They brought an application for judicial review of the adoption of the licensing requirement, claiming the required testing breached individual worker rights under the Canadian Charter of Rights and Freedoms (the “Charter”). Specifically, the appellants alleged breaches of Sections 7 (the right to life, liberty, and security of person), 8 (the right to be secure against unreasonable search and seizure), and 15 (the right to equality before the law and under the law as well as equal protection and benefit of the law). The appellants also claimed, in the alternative, that the requirements were unreasonable on administrative grounds.

The application judge dismissed the judicial review application on all grounds. In this decision, the Court of Appeal dismissed the appellants’ appeal, again on all grounds.

Federal Court of Appeal’s Commentary 

This update focuses on the Court of Appeal’s decision in relation to Section 8 of the Charter and the degree to which individual privacy is a bar on the “search and seizure” represented by alcohol and drug testing mandated by regulatory authority.

A Section 8 challenge to a government-mandated search and seizure requires a two-step analysis: 

1) Does the impugned search or seizure interfere with an individual’s reasonable expectation of privacy?

2) If so, is the action reasonable?

There was no dispute between the parties that mandatory alcohol and drug testing amounts to a “seizure” within the meaning of Section 8—workers would be required to submit to collection of bodily fluids (for example, breath, saliva, or urine).

Regarding the first step—interference with a worker’s “reasonable expectation of privacy”—the Court of Appeal accepted two conclusions of the application judge:

• Seizure of bodily samples in alcohol and drug testing is relatively nonintrusive.
• Safety-critical workers have a diminished expectation of privacy, given the nature of their work and the unique environment in which that work is being performed.

The Court of Appeal emphasized the need for a contextual analysis in determining an individual’s privacy expectations. Individuals have a greater expectation of privacy when they are in their own homes, and a lesser one when they are engaged in activity that requires regulatory intervention by the state to ensure public safety—for example, when operating a motor vehicle or when working in a safety-critical role. Alcohol and drug testing is more easily justified in those latter circumstances.

The nuclear industry is uniquely safety-sensitive given the “devastating and long-lasting impacts on the community and the environment” a nuclear incident could have. The Court of Appeal suggested that the nuclear industry is unlike any other inherently dangerous industry, given the magnitude and enduring damage a nuclear incident could cause.

As such, workers in safety-critical roles in the nuclear industry cannot reasonably claim a high expectation of privacy when it comes to alcohol and drug testing imposed as a licensing condition aimed at the safe operation of nuclear facilities.

Given this diminished expectation of privacy, the Court of Appeal held it was not necessary to find a general problem of substance use in the workplace before implementing alcohol and drug testing requirements. In the nuclear industry, a pre-emptive approach to safety was justifiable over a wait-and-see approach.

The Court of Appeal then considered the second step of the Section 8 analysis—whether the alcohol and drug testing in issue is reasonable. This analysis was lengthy, but the Court of Appeal concluded that how the mandated testing is to be carried out is a reasonable balance between the government’s interest in ensuring the safety of nuclear facilities and the diminished privacy interest of workers.

Takeaways

The outcome in this decision reflects the increasing importance appellate courts are placing on context in defining the scope of workplace privacy.

In the 2024 decision in York Region District School Board, the Supreme Court of Canada emphasized that privacy rights are malleable and that assessing an employee’s reasonable expectation of privacy “takes its color from context.” 

The Court of Appeal’s decision in Power Workers’ Union applies that principle to workers in safety-critical roles. While this decision relates to testing under a regulatory requirement, rather than under a unilateral employer policy, the Court of Appeal’s commentary provides food for thought for employers considering alcohol and drug testing as part of a workplace safety regime:

• The Court of Appeal’s assertion that safety-critical workers have a reduced expectation of privacy for testing should be applicable in any testing scenario—whether regulatory or employer-imposed. Privacy expectations should reflect the context of the risks present in a given job role.
• The Court of Appeal observed that in arbitral jurisprudence, arbitrators generally require “reasonable cause,” such as evidence of a general substance use problem, to justify random testing to all employees in a safety-sensitive workplace. It noted that such reasonable cause may not be necessary when testing is applied only to a narrow subset of safety-critical workers, as was the case here, as opposed to the general workplace population.

While the Court of Appeal noted that safety concerns are particularly acute in the nuclear industry, employers in any safety-sensitive workplace may point to this Power Workers’ Union decision to support pre-placement or random testing for narrow categories of workers in particularly safety-critical roles. Those workers may have diminished expectations of privacy that, in the balance, are outweighed by the safety objectives of alcohol and drug testing.

Emma Hamer is an attorney with Norton Rose Fulbright in Ottawa, Canada. © 2024 Norton Rose Fulbright. All rights reserved. Reposted with permission of Lexology.