Random drug and alcohol testing halted by top court

SAINT JOHN, N.B. (Canadian OH&S News)

A seminal decision from Canada’s top court has shot down a Maritime employer’s bid to impose a random drug and alcohol testing policy on its workers.

The decision, which came down from the Supreme Court of Canada on June 14, ruled that the random drug and alcohol testing policy at the Irving Pulp and Paper mill in Saint John, N.B. was unfounded, and that the employer could not demonstrate a reasonable justification for the policy, especially in terms of how it might improve health and safety.

“In this case, the expected safety gains to the employer were found by the board to range from uncertain to minimal, while the impact on employee privacy was severe,” the decision reads. “Consequently, the employer had not demonstrated the requisite safety concerns that would justify universal random testing. As a result, the employer exceeded the scope of its rights under the collective agreement.”

The policy, which was applied to “safety-sensitive” positions, was adopted at the Irving paper mill back in 2006, and included random breathalyzer testing for those employees. Shortly afterwards, a worker was selected by random lottery to be tested, and though his alcohol level proved to be zero, the local 30 chapter of the Communications, Energy and Paperworkers Union (CEP) filed a grievance on his behalf.  The union had argued that the policy was an affront to a worker’s privacy and dignity, and that it turns a blind eye to the overall issue of substance abuse.

“It’s a victory for common sense…Drug and alcohol abuse is furious in society and you can’t fix it by putting armed guards at the gate,” said national president of the CEP, Dave Coles. “Let’s stop blaming the victim and try to deal with the societal health issue. You can pass the work rule laws you want in the world — if you don’t get to the core cause, the root cause, you’re not going to fix nothing.”

Coles suggested that introducing a voluntary employee assistance program would be a viable solution which should be made available to employees looking to receive counselling. Removing the stigmas surround drug and alcohol abuse, he added, is the first step to creating a dialogue around such a taboo issue.

Whereas the union has viewed random testing as an invasive process, the Irving mill argued at court that the policies would better the health and safety of their employees.

In a statement released on June 14, J.D. Irving said that they “respect the decision issued today by the Supreme Court of Canada. We will be reviewing the decision and have no further comment at this time. Our focus has and continues to be the safety of our co-workers and communities where we have operations.”

The case potentially has major implications for random drug and alcohol testing policies across the nation, and could likely set a precedent. One high-profile case currently being watched with bated breath comes from Canada’s oil patch, where Suncor Energy in Alberta is battling in the courts with the CEP regarding random testing policies.

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