At the moment in Canada, there are some legal cases dealing with unions, privacy and random drug testing. The Supreme Court of Canada (SCC) recently decided a case on the issue. See: Communications, Energy and Paperworkers Union of Canada Local 30 v Irving Pulp and Paper Mill, 2013 SCC 34 (“Irving”). There is also ongoing litigation on a similar issue in Alberta (see: Communications, Energy and Paperworkers Union, Local 707 v Suncor Energy Inc, 2012 ABCA 307 (Suncor)) and interest in the issue of random testing in British Columbia (see: CBC News “Random drug testing continues at Teck mines despite ruling”).
In the Irving case, the Union brought a grievance challenging the mandatory random alcohol testing aspect of a policy that was unilaterally implemented by Irving at its paper mill in New Brunswick. Under the policy, ten percent of the employees who were in safety-sensitive positions were to be randomly selected over the course of a year for breathalyser testing. If there was a positive result for alcohol, there could be significant discipline meted out against the employee, including dismissal.
When the matter was first dealt with by an arbitration board, it weighed the employer’s interest in random alcohol testing against the harm of the policy to employees’ privacy interests. A majority concluded that the random testing policy was unjustified because there was an absence of evidence of alcohol use in the workplace.
The employer appealed, and the New Brunswick Court of Queen’s Bench set aside the finding of the arbitration board, holding that it was unreasonable, because of the dangerousness of the workplace (note: the worksite was ruled by the arbitration board to be “dangerous” and subsequent courts accepted this ruling). The New Brunswick Court of Appeal dismissed an appeal.
A majority of the SCC allowed the Union’s appeal, with the judgment being written by Justice Rosalie Abella. This case turned on the scope of management rights under a collective agreement, especially in view of the fact that the policy was unilaterally imposed. The majority held that the policy must be consistent with the collective agreement and be reasonable.
The SCC noted that there is substantial case law with respect to the unilateral exercise of management rights in a safety context. While it may be argued that dangerous unionized workplaces should be outside the reach of collective bargaining, the reality is that negotiations of workplace conditions have historically and successfully included a case-by-case balancing of public safety concerns with protecting privacy. This has resulted in a “balancing of interests” proportionality approach. Thus, an employer can impose a rule with disciplinary consequences, only if the need for the rule outweighs the harmful impact on the employees’ privacy rights. Arbitrators have found consistently that when a workplace is dangerous, an employer can test an individual employee if there is reasonable cause to believe that the employee was impaired while on duty, was involved in a workplace accident or incident, or was returning to work after treatment for substance abuse.
While the dangerousness of the workplace is highly relevant, this just begins the proportionality exercise. Dangerousness has never been found to be an automatic justification for the unilateral imposition of unrestricted random testing with disciplinary consequences. The arbitration board had found that the expected safety gains to the employer were ranging from uncertain to minimal, while the impact on employee privacy was severe. The board concluded that eight alcohol-related incidents at the mill over a 15-year period did not rise to the level of workplace alcohol abuse required to be considered dangerous. Thus, the employer had not demonstrated sufficient safety concerns that would justify universal random testing. This meant that the employer had exceeded the scope of its rights under the collective agreement.
Justice Abella did note that there may be dangerous workplaces where random drug testing may be justified if it is proportionate in view of both legitimate safety concerns and privacy interests.
The minority of the SCC held that the board had unreasonably required evidence of a “significant” or “serious” problem, while the consensus of arbitrations had required evidence of “a” problem. They also noted that there is no support for a requirement that the evidence of alcohol use be tied or causally linked to an accident, injury or near-miss history at the plant. Thus, the decision of the board fell outside the range of defensible reasonable outcomes with regard to the facts and the law.
In perhaps an ironic comparison, if a person in a non-unionized setting is disciplined for drug or alcohol use on the job, or is refused a job because of a positive pre-employment drug test, he or she can only claim discrimination on the basis of a disability if it is demonstrated that the he or she is addicted. Thus, casual or weekend use cannot be used as a defence in a human rights case. See, for example Alberta (Human Rights and Citizenship Commission) v Kellogg, Brown and Root (Canada) Company, 2007 ABCA 426. The Alberta case focuses on a “risk-based” approach in drug testing cases (rather than the “balancing approach” used in Irving) in which the focus is on the dangerous nature of the workplace and whether testing is rationally connected to a need to eliminate safety risks in a hazardous work environment.