Union’s challenge to random alcohol testing at New Brunswick paper mill dismissed

Any dangerous workplace doesn’t need pre-existing alcohol problem to justify testing; no legal distinction between degrees of danger: Court of Appeal
|employmentlawtoday.com|Last Updated: 07/12/2011

The New Brunswick Court of Appeal has upheld an employer’s random drug testing policy for safety-sensitive positions, ruling the workplace in question — a paper mill — is dangerous enough that a pre-existing alcohol problem need not be proven to justify the policy.

In 2006, Irving Pulp and Paper of Saint John, N.B., implemented a policy allowing unannounced, random drug tests for employees in safety sensitive positions and required those returning to or starting a safety sensitive position to pass a test.

Perley Day, a millwright at Irving’s Saint John mill, was selected for a random breathalyzer test during his shift on March 13, 2006. Day felt humiliated and degraded by the notification and testing process. The union grieved the policy, arguing there was no reasonable grounds to test Day and the ability to conduct random tests should depend on the history of safety in the workplace rather than the level of danger in the plant.

The New Brunswick Labour Board upheld the grievance, finding that in the case of dangerous workplaces such as what Irving claimed its workplace to be, the onus was on the employer to demonstrate a history of alcohol-related incidents and a level of risk in its workplace sufficient to justify random alcohol testing. It also found an employer engaged in an “ultra-hazardous endeavour” would have a less of an onus to justify testing because of the increased risk.

However, the New Brunswick Court of Queen’s Bench reversed the board’s decision on Irving’s appeal, finding the board created a new category of “ultra-dangerous operations” for which random testing was acceptable, rather than the “safety sensitive” conditions of other decisions. The court also found Irving’s policy was reasonable since the random testing applied only to those in positions where there was a risk to employees and the environment, which made it “minimally intrusive.” It also found Irving’s work environment was “inherently dangerous.”

The union appealed but on July 7, the New Brunswick Court of Appeal dismissed it. The appeal court disagreed with the union’s contention that arbitrators in Canada have rejected mandatory, random alcohol testing. Most of the decisions the union cited dealt with drug testing, and since alcohol testing could give an indication of current intoxication, while drug testing often did not, the former was more reasonable to use, said the Court of Appeal.

The appeal court also found workplaces that handle chemicals, such as oil refineries, have been considered workplaces which are dangerous enough to justify random alcohol testing, as long as accommodation is part of the policy.

The Court of Appeal noted there was no classification in law of an “ultra-dangerous operation.” Since the labour board had originally agreed that Irving’s paper mill was a dangerous work environment that handled chemicals and had a pressure boiler that could explode, there was no need to further break it down, said the court.

“Evidence of an existing alcohol problem in the workplace is unnecessary once the employer’s work environment is classified as inherently dangerous,” said the Court of Appeal. “It is not difficult to support the contention that Irving’s kraft paper mill qualifies as an inherently dangerous workplace as would a chemical plant.”

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