On Friday, June 14, 2013, the Supreme Court of Canada issued its 72-page decision on random alcohol testing in unionized workplaces (Communication Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.).  The Court split 6-3, with Chief Justice McLachlin being one of the three dissenting justices.  Although most of the decision interpreted employer rights under a collective agreement, the decision also referenced non-union workplaces as well.

The decision arose from a random alcohol testing policy (that required employees to submit to a breathalyzer or face discipline), that had been in place at its pulp mill operation in Saint John, New Brunswick.  Ten percent (10%) of the workforce was randomly tested annually.  Many of its comments will also likely apply to a unilateral employer policy on drug testing in its workplace.

Key Statements from the Decision of the Majority

“The dangerousness of a workplace is clearly relevant, but this does not shut down the inquiry, it begins the proportionality exercise” – “a carefully calibrated ‘balancing of interests’ proportionality approach”. [paragraph 4]

“Far from leaving the public at risk, protecting employees – who are on the front line of any danger – necessarily also protects the surrounding public.” [paragraph 19]

“In the earliest privacy cases using a balancing of interests approach, arbitrators generally found that employers could only exercise a unilateral management right to search an individual employee’s personal effects if there was a reasonable suspicion that the employee had committed theft.  Universal random searches — that is, random searches of the entire workforce — were rejected as unreasonable unless there was a workplace problem with theft and the employer had exhausted less intrusive alternative measures for addressing the problem.” [paragraph 28]

“As in the search cases, arbitrators rejected unilaterally imposed universal random testing policies as unreasonable unless there had been a workplace problem with substance abuse and the employer had exhausted alternative means for dealing with the abuse.” [paragraph 29]

“But I have been unable to find any cases, either before or since Nanticoke, in whichan arbitrator has concluded that an employer could unilaterally implement random alcohol or drug testing, even in a highly dangerous workplace, absent a demonstrated workplace problem.” [paragraph 37]

“Moreover, the employer is not only always free to negotiate drug and alcohol testing policies with the union, as was said in Nanticoke, “such an extraordinary incursion into the rights of employees must be expressly and clearly negotiated” (para. 101 (emphasis added)).  But where, as here, the employer proceeds unilaterally without negotiating with the union, it must comply with the time-honoured requirement of showing reasonable cause before subjecting employees to potential disciplinary consequences. Given the arbitral consensus, an employer would be justifiably pessimistic that a policy unilaterally imposing random alcohol testing in the absence of reasonable cause would survive arbitral scrutiny.” [paragraph 53]

“This is not to say that an employer can never impose random testing in a dangerous workplace. If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified.” [paragraph 52]   

“And, as we saw in Entrop, even in a non-unionized workplace, an employer must justify the intrusion on privacy resulting from random testing by reference to the particular risks in a particular workplace.  There are different analytic steps involved, but both essentially require attentive consideration and balancing of the safety and privacy interests.” [paragraph 20]

Dissenting Comments in the Minority Decision

The Court of Appeal was of the view that “[a]s matter of policy, this Court must decide whether an employer is under an obligation to demonstrate sufficient evidence of an alcohol problem in the workplace before adopting a policy requiring mandatory random alcohol testing” (para. 52 (emphasis added; emphasis in original deleted)).  We respectfully disagree.” [paragraph 69]

“In none of the cases of which we are aware, whether those that upheld such policies or those that set them aside, have we seen language requiring evidence of a “significant” or “serious” problem.  Rather, the standard has been that of evidence of a problem.  The difference between the two approaches is obviously a marked one and it cannot be ignored.” [paragraph 104]

“In any case, to require that an employer tie alcohol use to actual incidents at the mill, as the board in this case did, is not only unreasonable, it is patently absurd.  The arbitral cases recognize that evidence of alcohol use at an inherently dangerous facility such as the Irving mill — where the impact of a catastrophic failure could extend well beyond the safety of workers — is “a problem” enough.” [paragraph 105]

“It is one thing for employers and employees to negotiate a balance as they see fit with respect to their own privacy and safety.  It is a different matter, however, to leave the public interest to the vicissitudes of the bargaining table.”… “The point is simply that employees, employers, and the public may each strike the balance between privacy and safety differently.” [paragraph 71]

“In this case, as we will explain, the board departed from the legal test emerging from the arbitral consensus by elevating the threshold of evidence Irving was required to introduce in order to justify a policy of random alcohol testing.” [paragraph 80]

“First, one must distinguish between testing for drugs from that for alcohol.  Second, one must distinguish reasonable cause or post-incident testing from random testing.” [paragraph 89]

Consequences of the Majority (Binding) Decision

  1. Balancing of Interests Required: Whether or not a workplace is unionized, an employer is required to find the appropriate balance between protecting the safety of employees and safeguarding the privacy interests of employees.
  2. Obligation to Bargain Drug and Alcohol Policies: In a unionized workplace, an employer will likely have to negotiate its drug and alcohol policies with the trade union that represents employees in the workplace, or ensure that any discipline flowing from the policy satisfies a reasonable cause standard to justify testing the employee in the first place.  This would involve any kind of employee drug and alcohol testing.
  3. Demonstrable Workplace Problem Required: In order to justify any employee testing or personal searches for drugs or alcohol, an employer must have evidence of a significant workplace problem involving drugs and/or alcohol. The justification can be on an individual basis, so as to support the testing of a particular individual. Or, the justification can be on a workplace basis, so as to support a random testing of the entire workforce. In both cases, the evidence must be more than suspicion or hearsay.
  4. Erosion of Management Rights: The historic rights of management to operate its workplace as it sees fit, even where the collective agreement expressly preserves those rights, are restricted by legislation and the reasonable balance of the privacy interests of employees with workplace safety that has evolved in arbitration decisions.

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