Drug and alcohol testing picture gets murkier in Quebec

Quebec arbitrator and courts don’t agree on legality of random testing in safety-sensitive positions
|employmentlawtoday.com

The debate on drug and alcohol testing continues be unclear for employers with a recent ruling by the Quebec Court of Appeal that random testing in safety-sensitive jobs violates Quebec’s

Charter of Human Rights and Freedoms

.

In June 2004, Goodyear Canada Inc. planned to implement a drug and alcohol policy at its plant in Valleyfield, Que. The policy included screening employees for drugs and alcohol, which the union claimed violated employee privacy and the collective agreement.

The arbitrator found testing of all employees was unfair but allowed a modification that included hair, urine or breath testing of new employees, job applicants, employees suspected to be intoxicated and employees involved in an accident or after an absence suspected to be related to alcohol abuse. The arbitrator also allowed for random testing of employees in high-risk positions.

The Quebec Superior Court agreed with the arbitrator’s specifications, but the Court of Appeal did not.

The Court of Appeal ruled random screening for high-risk jobs “is not a reasonable minimal infringement on human rights.” It found hair, urine and breath testing can reveal drug or alcohol use for weeks before the test, which constituted “a major intrusion into the privacy of employees.” It also found the tests can reveal unrelated information such as the overall health of employees.

“No finding of fact by the arbitrator shows that compulsory and random screening tests for employees in high-risk positions are essential to ensure fair and reasonable working conditions that respect the health, safety and the physical integrity of employees,” the court said.

For more information see:

S.C.E.P. locale 143 c. Tremblay

, 2007 CarswellQue 11360 (Que. C.A.)(Fr.).

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