Client Update: Hold your breath, SCC rules on random alcohol testing

On June 14, 2013, the Supreme Court of Canada (“the Court”) released the decision that employers across the country were waiting for. In CEP Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34, a 6-3 decision, the majority of the Court ruled that an arbitration board’s decision to strike down the random alcohol testing component of an employer’s drug and alcohol policy was reasonable.

The employer in this case operates a pulp mill in Saint John, New Brunswick. Both the union and the employer agree that the workplace is inherently dangerous. Following in the footsteps of other operators of dangerous facilities, the employer adopted a comprehensive policy for employee drug and alcohol use at the mill.

The policy included provisions for random alcohol testing (but not random drug testing) for employees holding designated safety sensitive positions including a breathalyser test. The policy also provided for “post-incident” and “reasonable cause” drug and alcohol testing.

The matter in issue at the arbitration, and before each of the courts in the process, was whether an employer is required to establish reasonable cause before it can adopt a policy of random alcohol testing in an inherently dangerous unionized workplace.

The majority of the Court confirmed the established law that any rule or policy that is unilaterally imposed by an employer, and which is not subsequently agreed to by the union, must be consistent with the collective agreement and must be reasonable if the breach of the rule or policy results in disciplinary action.

In assessing the reasonableness of a rule or policy which affects employee privacy, a “balancing of interests” approach is used. The Court noted in this decision that the arbitral jurisprudence to date has only accepted random alcohol testing in cases where there has been a problem with substance abuse in the workplace and where the employer had exhausted alternative means for dealing with the problem.

The Court was unanimous that the “reasonableness” standard of review applied to the arbitration board’s decision (i.e., courts must defer to the board if its decision falls within a range of reasonable outcomes in light of the board’s findings of fact and law, and courts must not substitute their own views as to the proper legal framework and factual findings).

The Court concluded that based on the board’s findings of fact and past arbitral jurisprudence, the decision was reasonable and should not have been disturbed. The Court noted the arbitration board’s findings that:

• The evidence did not disclose a significant problem with workplace alcohol use, and there was therefore a low risk of safety concerns due to alcohol–related impairment on the job;
• The lack of positive test results in almost two years of random testing could indicate a successful deterrent or a lack of a problem in the workplace; and
• Breathalyser testing significantly impacts employee privacy.

The majority of the Court agreed with the arbitration board that random alcohol testing was an unreasonable exercise of management rights because the employer had not demonstrated the requisite problems with dangerousness or increased safety concerns, such as workplace alcohol use, to justify random testing.

The Supreme Court’s decision leaves employers with the following framework for alcohol testing in a dangerous unionized workplace:

“Reasonable cause” testing – it is permissible to test an employee if there is reasonable cause to believe that the employee is impaired while on duty.

“Post-incident” testing – it is permissible to test an employee who was involved in a significant workplace accident, incident or near-miss.

“Post-treatment” testing – it is permissible to test an employee who is returning to work after treatment for substance abuse. Such post-treatment testing may be random and unannounced, and administered on terms negotiated with the union.

Random testing – the dangerousness of a workplace, while relevant, is not an automatic justification for the unilateral imposition of random testing with disciplinary consequences. It may be permissible to randomly test employees where:

1. A testing program is negotiated with the union, or the union has subsequently agreed to a unilaterally adopted policy.
2. There is evidence of enhanced safety risks in the workplace, such as evidence of a general problem with substance abuse in the workplace. There may be “extreme circumstances” where this is not required, but the Court gave no examples of such extreme circumstances in this case.
3. The employer can establish that it attempted to use less intrusive measures to address the problem.
4. Testing represents a proportionate response in light of both legitimate safety concerns and employee privacy interests.

While it did not close the door on random testing completely, the majority of the Court stated that “an employer would be justifiably pessimistic” that a policy unilaterally imposing random alcohol testing in the absence of reasonable cause would survive arbitral scrutiny.

The Court noted elements unrelated to testing that may be included in drug and alcohol policies:

• rules about alcohol and drug usage in the workplace;
• discipline for employees who break those rules;
• education and awareness training for employees and supervisors;
• access to treatment for substance dependence; and
• after-care programs for employees returning to work following treatment.

If you have a policy in place dealing with drug and alcohol use in the workplace, you should review it to ensure compliance with the most recent Supreme Court of Canada decision.

Going forward, to ensure enforceability, employers operating in a dangerous workplace would be best served to negotiate testing policies with their union. Where that is not possible, employers should carefully document all incidents of alcohol use in the workplace, all workplace accidents and near-misses, any circumstances demonstrating increased safety concerns that could justify random testing and any less intrusive measures that have been taken, short of testing, to address the concerns in light of employee privacy interests.

The foregoing is intended for general information only and is not intended as legal advice. If you have any questions, visit our Labour & Employment group. For more on our firm see www.stewartmckelvey.com.