Safety Trumps Privacy: Part II Random Alcohol Testing
Feb 15, 2012
Communications, Energy and Paperworkers Union of Canada, Local 30 and Irving Pulp & Paper, Ltd. (2011 N.B.C.A. 58, CanLII)
For some time there has been an uncomfortable tension surrounding alcohol testing in the workplace. In an effort to limit the employer’s intrusion into employee’s off-work conduct, there was a line of decisions challenging the ability of an employer to have truly random employee testing. Our clients with safety-sensitive positions were frustrated that the apparent test was that they had to wait until they had cause (such as a safety incident) before they could require an employee be tested. However, the law in this area is still evolving, and a recent New Brunswick case offers some guidance.
In 2006, Irving Pulp & Paper, unilaterally adopted a workplace policy at one of its kraft mills requiring employees in safety sensitive positions to submit to mandatory and random alcohol testing by breathalyser. Each year, a computer would randomly select for testing the names of 10% of the employees holding such positions.
The union filed a policy grievance arguing against the “without cause” nature of the policy, believing that the employer had to first show the existence of a particular problem with alcohol in the mill before initiating random alcohol testing. The majority of the arbitration board applied a harsh test requiring the employer to establish that the mill operations created an ‘ultra-dangerous’ risk of harm sufficient to outweigh an employee’s right to privacy, suggesting that the workplace would have to be the equivalent of a nuclear plant, an airline, a railroad, or a hazardous chemical plant to warrant a random alcohol testing policy. and similar operations. The dissenting board member found that the kraft mill was in fact “highly dangerous” such that proof of a pre-existing alcohol problem in the mill was not necessary to establish the policy was reasonable.
On judicial review the New Brunswick Court of Queen’s Bench struck down the arbitration award, holding that once the majority had found that the workplace was inherently “dangerous” (as opposed to “ultra-dangerous”) with a “potential for catastrophe”, it was unreasonable to require the employer to provide evidence of a pre-existing alcohol problem at the mill.
The Court of Appeal unanimously endorsed the lower court decision finding that it was unreasonable to require an employer to demonstrate the existence of an alcohol problem in its operations where those operations are “inherently dangerous”. The Court of Appeal also relied on a decision of arbitrator Picher in another case involving a different Irving company engaged in sawmill operations where random alcohol testing was introduced by the employer. In that case, Picher held that the test for this type of alcohol testing was to ask ” . . . what consequences are risked if the person performing a particular kind of work does so impaired by drugs or alcohol. . . . Those performing tasks while impaired by drugs or alcohol in circumstances where they pose a safety risk to themselves or others or to property or equipment fall within the classification of safety sensitive positions.”.
This Court of Appeal decision then provides considerable guidance and support to employers considering random alcohol testing in operations that are inherently dangerous. It must be stressed that any random alcohol testing should be limited to employees in safety sensitive positions only and that this decision applies to alcohol testing only. At this time, the technology for other drug testing is still considered to be more invasive of privacy and its results are both less reliable and unrelated to the state of impairment of a person at the time the drug test was administered. For example, knowing that an employee used cocaine sometime in the last number of weeks does not necessarily mean that they were under its influence at the time of the random testing. The lesson: privacy interests will give way to safety concerns if the intrusion can reduce the hazard.