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Employee privacy and occupational safety, especially in a dangerous workplace, are significant workplace interests that sometimes conflict.
The Supreme Court of Canada recently weighed the importance of workplace safety against the right to privacy in the context of an employer randomly testing for alcohol and drugs at work. The decision in the case, Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, published June 14, 2013, is the first from Canada’s highest court to consider random drug and alcohol testing in the workplace.
A 6-3 majority decided that Irving Pulp & Paper Ltd.’s implementation of random alcohol testing for employees in safety-sensitive positions was an invalid exercise of management rights.
“A unilaterally imposed policy of mandatory random testing for employees in a dangerous workplace has been overwhelmingly rejected by arbitrators as an unjustified affront to the dignity and privacy of employees unless there is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace,” the court said.
Irving operates a paper mill in Saint John, New Brunswick. In 2006 the company adopted a drug-and-alcohol policy at the mill that included random alcohol testing, via Breathalyzer, of employees holding safety-sensitive positions. This was done under the management-rights clause of the collective bargaining agreement. Under the policy, 10 percent of the workers in safety-sensitive positions were randomly selected for testing over a year. Those whose test results revealed a blood alcohol level concentration greater than 0.04 percent would be subject to disciplinary action based on a scale that included the option of termination.
Shortly after the policy’s adoption, an employee was randomly selected and tested. Although the test revealed that the individual was alcohol-free, the employee’s union challenged the random-alcohol-testing component of the policy as an unreasonable exercise of management rights. The union did not challenge the rest of the policy, which included drug and alcohol testing in the following situations: if management had reasonable cause to believe that an employee was impaired while on duty, after a workplace incident and for the purpose of monitoring someone’s return to work after voluntary treatment for substance abuse.
The Board of Arbitration heard the case and 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,” said Daniel Pugen, a partner in McCarthy Tétrault’s labor and employment group in Toronto.
On judicial review, the board’s decision was set aside as unreasonable because of the dangerous nature of the workplace. The appeal was dismissed by the New Brunswick Court of Appeal but was further appealed to the Supreme Court of Canada.
The Court’s Ruling
The Supreme Court’s majority opinion was that the court of appeal had relied too heavily on the “dangerousness” of the workplace.
“The dangerousness of a workplace—whether described as dangerous, inherently dangerous or highly safety sensitive—is, while clearly and highly relevant, only the beginning of the inquiry,” the majority said. “It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.”
While the three dissenting judges agreed that there must be some evidence of alcohol use in the workplace to justify random testing, they argued that evidence of a “serious” or “significant” problem is not necessary.
The immediate takeaway for employers is that a unilaterally imposed policy of mandatory, random and unannounced testing for safety-sensitive employees in a unionized, hazardous workplace will require reasonable cause, said Margaret Gavins, a partner in the labor and employment group at Heenan Blaikie’s Toronto office.
“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,” said Pugen.
“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,” he explained.
How an employer will establish that reasonableness is still uncertain.
Pugen advised companies to “continue to carefully document drug and alcohol-related incidents in the workplace and seek union consensus where possible.”
Irving establishes that random alcohol and drug testing is generally not allowed in Canada, but the decision “will have a significant effect on any employers who have been randomly testing employees for drug and alcohol use,” noted Kyla Stott-Jess, an associate in the Calgary office of Fasken Martineau. “Although the court recognized that random testing may be imposed where it is a ‘proportionate response’ to safety and privacy interests, this case leaves employers with a much higher bar to clear.”
A Labor Relations Issue
Though the issues pertaining to workplace drug and alcohol testing are often viewed through the lens of health, safety and privacy, the Supreme Court’s decision is more grounded in traditional labor relations and administrative law analysis, said Gavins.
“The issue in this case, as framed by the court, was whether Irving’s implementation of random alcohol testing for employees in safety-sensitive positions was a valid exercise of Irving’s management rights under the collective agreement,” she said.
In a unionized workplace, the issues in this case are usually dealt with during collective bargaining. “If an employer, however, decides not to negotiate safety measures before implementing them, and if those measures have disciplinary consequences for employees, the employer must bring itself within the scope of the management rights clause of the collective agreement,” the court said.
The court added that the “scope of management’s unilateral rulemaking authority under a collective agreement is 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.”
“Certainly nonunion employers will press hard to say that Irving is limited to the labor context and possibly restricted to random alcohol testing,” advised Brian Thiessen, a partner at Blake, Cassels & Graydon, based in Calgary. However, he said there are indications that the decision will have broader implications for drug and alcohol testing.
“Employers in both union and nonunion environments should, therefore, be prepared going forward to justify random testing initiatives on the basis of evidence of a general drug or alcohol problem in the workplace and to respond in a fulsome way to arguments regarding the intrusiveness of such testing initiatives on employee privacy,” Thiessen recommended.
Roy Maurer is an online editor/manager for SHRM.
Follow him on Twitter @SHRMRoy.
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