The Supreme Court of Canada has granted the union leave to appeal a decision of the New Brunswick Court of Appeal dealing with the scope of an employer’s ability to require employees to submit to random alcohol testing.
In Irving Pulp & Paper Ltd., a pulp and paper company introduced a policy that imposed mandatory and random alcohol testing by breathalyser for employees in safety-sensitive positions. The board of arbitrators held that in order to impose such testing, an employer must demonstrate that there is an existing alcohol impairment problem in the workplace, unless the workplace is considered “ultra-dangerous”. Since the workplace was merely “dangerous” and there was insufficient evidence of an alcohol impairment problem which would warrant the policy, the grievance was allowed.
This decision is similar to the general approach in Ontario which has tended to focus on balancing the employer’s safety interests with the employees’ privacy and dignity interests, often requiring an employer to establish that there is an existing problem with alcohol in the workplace. By contrast, some Western provinces look to the question of whether an alcohol testing policy is necessary to ensure a safe workplace.
The Court of Appeal overturned the decision and concluded that an employer can implement a policy for mandatory random alcohol testing so long as (1) the workplace is “inherently dangerous”, and (2) the policy only applies to individuals in safety sensitive positions. Evidence of an existing alcohol problem was not necessary to justify random testing, so long as these two criteria were met.
Hopefully the Supreme Court will use this opportunity to lessen the legal ambiguity surrounding the use of mandatory random alcohol testing in safety-sensitive workplaces, as the provinces have been divergent on this issue.
If you have any questions about alcohol or drug testing in the workplace, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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