In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 [“Irving”], the Supreme Court of Canada (“SCC”) issued a landmark decision concerning workplace drug and alcohol testing. Irving strikes a new balance between the competing interests of employee privacy and workplace safety.
Irving involved a drug and alcohol policy at a unionized pulp and paper facility in New Brunswick. Under this policy, the employer administered random, unannounced breathalyser tests to employees in “safety sensitive” positions. The union grieved the policy, arguing it was inconsistent with the management rights clause under the collective agreement.
The union’s grievance was allowed. It was judicially reviewed and eventually appealed before the Supreme Court of Canada (“SCC”). The SCC concluded that the policy was not justified because the employer had failed to establish that there was an existing problem with alcohol use in the workplace that would justify the unilateral imposition of random alcohol tests.
Current Best Practices – Drug and Alcohol Testing
As a result of Irving, and other jurisprudence (including human rights decisions), employers should consider implementing the following best practices when drafting workplace drug and alcohol testing policies:
- Drug and alcohol testing is generally permitted where: (1) there is “reasonable cause” to suspect an employee is intoxicated at work; (2) testing is “post-incident”; or (3) testing is part of a return-to-work rehabilitative program.
- Random testing and pre-access testing remain controversial and are only justified under exceptional circumstances. Employers with dangerous operations who wish to unilaterally impose random or pre-access drug and alcohol testing policies must establish that the workplace in question has unique problems and vulnerabilities associated with drug and alcohol abuse, and that their particular policies are justified under those circumstances.
- Policies that are more flexible and sensitive to an individual employee’s circumstances are more likely to be deemed reasonable than policies that preclude employees from the opportunity to redeem a negative test.
- In consideration of the employee’s right to privacy, the policy should be as minimally invasive as possible and proportionate to the evidence available in support of testing.
- Policies must take into account the possibility that drug and alcohol use may indicate a protected ground under human rights legislation, triggering a duty to reasonably accommodate.
- Employers should have employees read and sign copies of drug and alcohol policies, acknowledging that they are working in safety sensitive positions where that is arguably the case. Wherever possible, employers are wise to seek employee or union consent before implementing drug and alcohol policies.
- Drug and alcohol policies should be accompanied by clear policies respecting the collection, use, and disclosure of employee personal information concerning drug and alcohol testing.
Many thanks to Claire-Marie Colantuoni for her assistance in drafting this blog.