Random Alcohol and Drug Testing in Safety-Sensitive Positions

By Rachel Ravary and Philippe Lacoursière
McCarthy Tetrault

Earlier this year, we reported on the decision of the Alberta Court of Appeal in Chiasson v. Kellogg Brown & Root (see the January 22, 2008, blog entry titled Ruling helps Alberta employers defend preemployment testing challenges), which upheld an employer’s right to perform mandatory preemployment alcohol and drug screening for safety-sensitive positions.

But only a few weeks earlier, the Québec Court of Appeal had quietly ruled in Section locale 143 du Syndicat canadien des communications, de l’énergie et du papier v. Goodyear Canada Inc. that random alcohol and drug testing of employees working in safety-sensitive positions violated Québec’s Charter of Human Rights and Freedoms.

Facts
In June 2004, Goodyear adopted a “Policy regarding Alcohol Consumption and Use of Drugs and Medication” for its tire plant in Valleyfield, Québec. The union filed a grievance alleging that the policy violated the collective agreement, the Civil Code of Québec and the Charter.

In his award, arbitrator Denis Tremblay modified the policy slightly to make it one that he considered would be lawful. This “modified” policy provided for alcohol and drug testing by means of hair, urine, or breath analysis. The policy could be applied in any of these cases:

• to test job applicants and new employees;
• in situations where there was reasonable and probable cause to believe that an individual was under the influence of drugs and alcohol;
• following an accident in the workplace;
• in a random, unannounced manner for employees working in “high risk positions;” and finally
• after an employee had been absent because of alcohol consumption or drug use.

After the Québec Superior Court refused to overturn the arbitrator’s decision, the union brought the matter before the Court of Appeal.

The union did not contest Goodyear’s right to test employees when there was reasonable and probable cause to believe that they were working under the influence of either alcohol or drugs. However, it argued that the Superior Court judge wrongly held that random alcohol and drug testing is not an excessive invasion of privacy and other individual rights, even for safety-sensitive positions. In response, Goodyear argued that legitimate safety considerations justify the invasion of privacy, particularly for employees working in high-risk positions.

The Court of Appeal agreed with the union and allowed the appeal, striking down the clause in the modified policy that would have allowed random testing of employees in safety-sensitive positions. The court ruled that the policy did not meet the requirement that it minimally infringe on the employees’ privacy rights.

The Court of Appeal found that these tests did not prove that the employee was impaired but only pointed to consumption any time in the weeks preceding analysis of the sample. This method of random testing would therefore allow Goodyear to unreasonably intrude into the private lives of its employees.

Further, these samples could reveal other confidential information about employees’ state of health. Finally, the court noted that, despite Goodyear’s poor workplace accident record, no direct link could be drawn between this situation and the consumption of alcohol or drugs in the workplace.

What does this mean for employers?

1. As a general rule, random alcohol and drug testing for Québec employees working in safety-sensitive positions is prohibited.
2. The Court of Appeal arguably leaves open the possibility that random alcohol and drug testing may be justified if an employer can establish a direct link between a pattern of work-related accidents and alcohol or drug consumption in the workplace.
3. Given the recent contradictory decisions, it appears that – at least in Alberta, British Columbia, Ontario, and Québec – alcohol and drug testing of individuals in safety-sensitive or high-risk positions remains contentious and subject to challenge. For employers in Québec, it will now take very specific circumstances to get around the application of this Court of Appeal decision. Absent such circumstances, random alcohol and drug testing for employees working in safety-sensitive positions is prohibited in Québec.