The Supreme Court of Canada has concluded that a workplace policy which provides for random alcohol testing is not justified when there is an absence of evidence of an existing problem with alcohol use in the workplace, even where the workplace is considered inherently dangerous.
In doing so, the Supreme Court overturned the New Brunswick Court of Appeal’s decision that had 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.
In February of 2006, Irving Pulp & Paper Mill (“Irving”) had implemented a random alcohol testing policy whereby 10% of workers who held safety sensitive positions were to be randomly selected for breathalyzer testing over the course of a year. If the test was positive, the offending worker would receive immediate disciplinary action, and likely dismissal. A refusal to take the breathalyzer test also warranted immediate dismissal.
Although there was no dispute that the workplace was a dangerous one, the Supreme Court determined that the simple fact that a workplace might be “highly safety sensitive” or “inherently dangerous” did not, in and of itself, justify the implementation of a random alcohol testing policy.
Rather, focusing on the notion that a unilateral management policy must be reasonable and proportionate, the Supreme Court noted that Irving had 8 documented incidents of alcohol consumption or impairment at the workplace over a 15 year period, none of which had led to an accident, injury or near miss. When balancing this evidence against the privacy and dignity rights of individual workers, the Supreme Court concluded that the employer had failed to demonstrate a sufficient workplace problem or requisite safety concern which would warrant such an infringement on individual workers.
As such, the Court noted that the dangerousness of the workplace is only one factor to consider in assessing whether it is justifiable to implement a random alcohol testing policy. An employer must also have evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.
The Court also commented that while an employer is always free to negotiate drug and alcohol testing policies, instead of attempting to implement them unilaterally, such an “extraordinary incursion” into the rights of employees must be negotiated expressly and clearly.
Perhaps most importantly, the Court did not state that an employer can never impose random testing in a dangerous workplace. Random testing may be justified if it represents a proportionate response in light of both legitimate safety concerns and privacy interests.
For more information on the extent to which drug and alcohol testing may be allowed in your workplace, or for any other questions relating to workplace law, please do not hesitate to contact a Mathew Dinsdale lawyer.
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