Employer wins right to proactive alcohol testing

Appeal courts overturn arbitration board’s distinction between levels of danger and need to prove pre-existing problem
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 09/07/2011

Courting danger

There has been a lot of back-and-forth between courts and arbitrators in different regions of Canada regarding the acceptability of random, mandatory testing of employees for drug and alcohol use. Concerns about employee privacy have faced off against those of workplace safety over what’s more important.

It’s become more likely in recent decisions to have certain testing allowable if there are genuine concerns for employees in safety-sensitive positions where impairment could cause a hazardous situation. But an arbitration board in New Brunswick drew another line against an employer’s alcohol testing policy. Its distinction between a dangerous workplace and an ‘ultra-dangerous workplace’ stirred up more potential headaches for employers and a trip to the New Brunswick Court of Appeal to resolve the issue.