Canadian Employment Law Today

CELT July 24 2013:celt 467.qxd 13-07-09 2:44 PM Page 1 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS JULY 24, 2013 Random alcohol testing fails Supreme Court's test Top court gives final word on debate over the right to test employees in safety sensitive positions | BY ADRIAN JAKIBCHUK AND GERALD GRIFFITHS | IN A 6-3 decision released in June of this year, the Supreme Court of Canada ruled as unreasonable the mandatory alcohol testing policy adopted by Irving Pulp and Paper for employees in safety sensitive positions. According to Canada's top court, a dangerous workplace is not autoALCOHOL matic justification for random testing. Additional factors must be present, including, for example: •Reasonable grounds to believe an employee is impaired while on duty. •A workplace accident or near miss justifying post-incident testing. •An employee returning to work after treatment for substance abuse so that the testing protocol is part of a "returnto-work" program. •Evidence of a workplace problem of alcohol abuse. The decision has broad implications for employers in all industries and sectors, but particularly for those with safety sensitive positions. A controversial alcohol testing policy Irving Pulp and Paper operated a unionized paper mill in New Brunswick. In 2006, purportedly in response to alcohol issues in the workplace, the company unilaterally adopted a drug and alcohol policy. Under this policy, 10 per cent of employees classified as working in "safety sensitive" positions were to be randomly selected for unannounced breathalyzer testing. A positive test would lead to disciplinary action, up to and including dismissal. The union challenged the random testing as an unjustifiable breach of employee privacy rights. The union argued that a breathalyzer test — being an involuntary submission of bodily fluids — required a high level of personal intrusion TESTING which should only be permitted when there is reasonable cause such as slurred speech, the smell of alcohol or an actual accident or near miss. In its defense, Irving argued its policy was justified given the unique circumstances and history of the mill as well at its legal duty to protect the health and safety of its workers. The mill contained hazardous chemicals, flammable substances, heavy rotating equipment, a 13,000-volt electrical system and a $350million high-pressure boiler. It had also experienced at least eight documented alcohol-related incidents between 1991 and 2006. In all of the circumstances, Irving maintained it was not reasonable to require its random testing policy to be tied or causally linked to an actual accident or near miss in the workplace. Given its duty to protect its workers, Irving argued it should not have to wait for a serious incident before taking action. In T h is I s s u e ASK AN EXPERT: Dismissal threshold for violations • Learning of employee's addiction CASES AND TRENDS: Ontario worker gets $70,000 for discrimination and reprisal CASE IN POINT: Four proactive steps to bully-proof your workplace OPINION: New regulations a burden for businesses with foreign workers YOU MAKE THE CALL: City tears down building inspector's side job 2 3 4 7 12 Refusal to take drug test not just cause for dismissal: Arbitrator At arbitration, the random testing policy was struck down as being a signif- A NOVA SCOTIA company wrongfully dismissed an employee who refused to take a drug test after a supervisor smelled marijuana on him at work, the Nova Scotia Supreme Court has ruled. On Dec. 2, 2011, a supervisor for the Halifax Streets Department came over to a city truck with two employees inside. The supervisor claimed he smelled marijuana, but both employees denied there was any smell. The supervisor allowed them to leave, telling them to drive safely. About an hour later, the two employees were called into a meeting and asked to take a drug test. One employee — the one who had been in the passenger seat — refused, saying he was a recreational user of marijuana and the test would be positive because marijuana stayed in the sys- Continued on page 8 Continued on page 11 Legal battle goes back and forth

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