Supreme Court of Canada Issues Decision Regarding Mandatory Alcohol and Drug Testing

On June 14, 2013, the Supreme Court of Canada upheld a decision of a Board of Arbitration that had struck down the random alcohol testing portion of a paper mill’s drug and alcohol policy. Under this policy, 10% of employees in safety sensitive positions were to be randomly selected for unannounced breathalyzer testing over the course of a year. The employer had implemented the alcohol and drug use policy as part of its management rights under the collective agreement. The Union filed a grievance on the issue of whether the random alcohol testing was a reasonable exercise of the employer’s management rights. There was no issue that this was a dangerous workplace. However, the Court, in agreeing with the Board of Arbitration, noted a dangerous workplace does not automatically give an employer the right to unilaterally impose random testing. The question was whether the benefit to the employer from random alcohol testing in a dangerous workplace was proportional to the harm to employee privacy. In this case, there was no evidence that there was a significant problem with workplace alcohol use. The Court noted that the expected safety gains to the employer in this case were at best minimal while the impact on employee privacy was much more severe. While random alcohol testing was found to not be a reasonable exercise of management rights in this case, the Court was clear that it may be justified if it is a proportionate response to legitimate safety concerns. While not at issue in this case, the Court confirmed the right of management in dangerous workplaces to test individual employees who occupy safety sensitive positions if there is reasonable cause to believe the employee is impaired while on duty, where the employee has been directly involved in a workplace accident or significant incident, or where the employee is returning to work after treatment for substance abuse. Local governments will want to review those portions of their drug and alcohol policies that require random testing to ensure they are justified in light of the decision in this case.