Posted: July 10, 2013
Written by: Nicole Smith
The Supreme Court of Canada has recently redefined how random alcohol testing imposed by an employer is viewed under the law. Previously courts had assumed that NO balancing of the employees’ right to privacy versus the employer’s need to maintain a safe workplace was required once a finding was made that a workplace was dangerous.
On June 14, 2013, the Supreme Court overruled this assumption in the decisionCommunications, Energy and Paper Workers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, (2013) SCC 34. In this decision, the union, Communications, Energy and Paper Workers Union of Canada, brought a grievance challenging the mandatory random alcohol testing policy imposed by Irving Pulp & Paper, Ltd.
In its analysis, the Court noted that a dangerous workplace has not been found to be an automatic justification for an employer to impose random drug and alcohol testing with disciplinary consequences. This is true even in the case of “highly safety sensitive” or “inherently dangerous” workplaces. Instead, the Court emphasized that employers are generally entitled to test individual employees who occupy safety sensitive positions without having to show that alternative measures have been exhausted, only if the employer had a justifiable reason to do so.
The Court clarified by giving a few examples of reasons which justify an employer performing random drug and alcohol testing. These examples include:
1) evidence which leads the employer to believe that the employee is impaired while on duty;
2) where the employee has been directly involved in a workplace accident or significant incident; or
3) where the employee is returning to work after treatment for substance abuse.
Consequently, unless such circumstances exist, an employer may be obliged to show that alternative measures of ensuring a safe workplace have been exhausted before it may impose random alcohol testing. Furthermore, the Court went on to add that random testing in a dangerous workplace must be justifiable in light of both legitimate safety concerns held by the employer and the privacy interests of the employee.
This decision has an impact on employers who are currently, or are planning to perform random drug and alcohol testing on employees. If you are uncertain as to whether you are conducting drug and alcohol testing of your employees in accordance with the law, or should you have a question on other legal matters, please feel free to contact me at[email protected] or 204-956-3584.