Is random drug and alcohol testing legal in Canadian workplaces? There still may not be an absolutely clear answer to that question but the Supreme Court of Canada has restored an arbitrator’s decision in a unionized workplace that a universal random testing regime was an affront to the dignity and privacy of employees. It held that there was insufficent evidence of enhanced safety risks to justify the policy. The fact that the workplace was dangerous did not, in itself, give the employer a carte blanche to impose the policy unilaterally.
In Communications, Energy and Paperworkers of Canada, Local 30 v. Irving Pulp & Paper Ltd., the Supreme Court reviewed a case that had started as a grievance filed by a teetotalling employee, who had not had a drink in 30 years. The grievance had been filed to challenge a policy of mandatory drug and alcohol testing that the employer had unilaterally imposed. At the grievance arbitration, the arbitrators noted that there had been 8 incidents of alcohol consumption or impairment over a 15 year period. None of these incidents had led to accidents, near misses, or injuries. The arbitrators concluded that the harm to employee privacy and dignity substantially outweighed the safety-risk justification of upholding the policy. The Supreme Court ultimately agreed, overturning decisions of two levels of New Brunswick courts, which had reversed the arbitrators’ decision.
The majority had this to say about the standard for testing:
“the dangerousness of a workplace — whether described as dangerous, inherently dangerous, or highly safety sensitive — is, while clearly and highly relevant, only the beginning of the inquiry. It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.”
The 3-judge minority of the Court issued a blistering dissent in which it argued that the arbitrator’s decision was outside of the range of reasonable outcomes and had been properly reversed by the New Brunswick courts. The minority would have found that there had been sufficient evidence of safety risk to justify the unilateral imposition of a universal drug and alcohol testing policy. In its view, there was sufficient evidence of safety considerations to outweigh the incursion into employee privacy rights.
The case is considered relevant and applicable, primarily, to unionized workplaces. But the impact may be very significant, across a range of workplaces. In unionized workplaces, the Supreme Court has made it clear that employers will need to meet a high threshhold to justify the unilateral imposition of a universal testing policy. In non-unionized workplaces, the Court’s decision may well wind up having an impact. Human rights tribunals across Canada and Canadian Courts will be required to take notice of the Supreme Court’s assessment of the importance of employee privacy and dignity in Canadian workplaces.
While it is too early to assess the extent of the impact this will have, it seems likely to help the cause of employee privacy rights across Canada in many different contexts.