Northern Exposure

Canadian Court OKs Random Alcohol Testing

by Nicola Sutton

The recent decision of Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30 by the New Brunswick Court of Appeal has upheld random alcohol testing where the workplace is determined to be “inherently dangerous” and the method of testing is minimally intrusive.

This is an important case for employers seeking to ensure the safety of their workplaces in Canada. Drug and alcohol testing in Canada is legally more restricted than it is in the United States.

In this case, a grievance was filed by a 34-year-old millwright in the maintenance department of a pulp and paper mill. He was randomly selected for an immediate breath-alcohol test. The employer’s policy on drug and alcohol use stated: “Employees involved in safety sensitive positions will be subjected to unannounced random tests for alcohol.”

Although the employee passed the test, he challenged the policy. His union alleged there were no reasonable grounds to test because there had been no accident or incident to justify  such a test.

The arbitration board that initially heard the case focused on whether the policy struck a reasonable balance between the employee’s and the employer’s competing interests.  The board found that it did not. It ruled that the employer had to justify the policy by demonstrating that the policy’s benefit was proportional to the intrusion on employees’ privacy rights.

The board acknowledged that alcohol and safety issues were a prominent concern given the nature of the work at the employer’s mill. But it distinguished between an “ultra-dangerous” workplace (such as a nuclear plant, an airline, a railroad, or a chemical plant), where no history would be required to justify such a policy, and a merely “dangerous” one, where such testing would be reasonable only if the employer could demonstrate a history of alcohol-related incidents.

The board ruled there was no evidence of a significant problem with alcohol-related impaired performance in the employer’s operations. There were five alcohol-related incidents but no accidents or injuries over 15 years. Furthermore, despite random testing of 10 percent of the workforce, no positive tests had been reported. As a result, the board concluded there was no real advantage to be gained and struck down the employer’s policy.

The employer successfully applied to have the decision overturned by the New Brunswick Court of Queen’s Bench. In its reasons, the court disagreed with the board’s distinction between “dangerous” and “ultra-dangerous.” In the court’s view, once a workplace is found to be dangerous, no further justification is required; the only issue to decide is whether the policy was proportional to its potential harm.

It was unreasonable to require a history of accidents or incidents to justify a policy of random alcohol testing where the potential for a catastrophe exists. The prevention of a single catastrophe in the life of the employer’s operations would be enough to make the policy reasonable in the court’s view. It would be unreasonable to require an employer to wait until a catastrophe occurred before taking proactive measures to prevent it.

The court ruled that breath-alcohol testing was minimally intrusive. The policy applied only to a limited number of employees in legitimately safety-sensitive positions. As a result, the policy wasn’t out of proportion to the actual and expected benefit. The policy was justified in the circumstances.

The union then appealed to the New Brunswick Court of Appeal. The appeal was dismissed in a decision issued on July 7, 2011. The appeal court rejected the union’s argument that sufficient evidence of a pre-existing drug or alcohol problem in the workplace is a precondition to the enforceability of such a policy unless the workplace is “ultra-dangerous.” The lower court’s finding was upheld.

This decision is important for employers. It confirms the employer’s right to implement random alcohol testing for safety-sensitive positions in an inherently dangerous workplace. One doesn’t necessarily need to show a history of alcohol-related accidents or infractions.

Earlier decisions upheld testing where reasonable grounds to test clearly exist or after an accident has occurred. This decision builds on those cases. It confirms the employer’s right to randomly test employees employed in safety-sensitive positions at least for alcohol.

It must be noted, however, that this ruling would not necessarily extend to drug testing.  While current methods of alcohol testing can be used to assess an employee’s impairment at the time of the test, the courts have determined that current drug-testing methods are unable to provide this information. As a result, the privacy intrusion associated with random drug testing often can’t be justified.