Random drug and alcohol testing goes before the Supreme Court of Canada

Dispute over random testing in New Brunswick paper mill currently in employer’s favour after Court of Appeal ruling
|employmentlawtoday.com|Last Updated: 04/26/2012

An ongoing battle between a New Brunswick employer and its union over random drug and alcohol testing is going to the Supreme Court of Canada.

Irving Pulp and Paper operated a paper mill on the St. John River in New Brunswick. On Feb. 1, 2006, Irving adopted mandatory random drug and alcohol testing for employees in safety sensitive positions. A computer would select names from a list of employees in safety sensitive positions for a breathalyzer test. In any 12-month period, 10 per cent of the employees on the list were selected. Anyone with a blood alcohol level over 0.04 per cent would subject to discipline.

An employee challenged Irving’s right to test employees without cause, and the union filed a grievance. An arbitration board found that for the testing to be reasonable, Irving had to show there was sufficient risk that alcohol abuse was a danger in its workplace. Evidence showed there were five incidents over the previous 15 years in which an employee showed up for work under the influence of alcohol and there had been no positive tests since random testing had been implemented, which didn’t prove there was sufficient risk to warrant testing.

The New Brunswick Court of Queen’s Bench overturned the decision, finding the requirement to prove a history of accidents in a dangerous workplace to justify random alcohol testing was unreasonable because it meant Irving would have to wait until something happened before it could take measures to prevent it. The court also noted that the board had recognized the paper mill was a dangerous workplace but not dangerous enough to warrant random alcohol testing, resulting in an unreasonable distinction between a dangerous workplace and an “ultra-dangerous” one.

The case advanced to the New Brunswick Court of Appeal, which noted that past decisions stipulated that evidence of an existing alcohol problem in the workplace wasn’t necessary if the work environment was classified as inherently dangerous. Though the arbitration board had identified Irving’s paper mill as dangerous but not ultra-dangerous, the appeal court said there was no such distinction in reality. The board’s finding that the mill was a dangerous work environment should have been enough to warrant an alcohol testing policy without proof of an existing problem, said the appeal court.

The union took the case to Canada’s highest court, which granted leave to appeal in March. The union filed its notice of appeal last week, and the Supreme Court will begin examining the issue.

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