Battle over workplace drug tests just heating up following court ruling

It is becoming increasingly difficult to identify the fine line between workers’ privacy rights and employers’ rights to ensure a safe workplace.  This article presents some interesting situations in which employers and employees struggle to find a common ground.

Article credit given to: Ian Mulgrew from the Vancouver Sun.


More and more Canadians are being asked to prove, in the name of safety, that they are sober and not addled before clocking in at work.

Earlier this month, the Supreme Court of Canada issued its first ruling on this incredible invasion of personal privacy and opened the discussion about when it can be allowed.

The high bench confirmed that drug-and-alcohol testing is lawful only under certain circumstances and it gave unions a means by which to challenge some of these policies by demanding better evidence of an existing problem.

In a case watched closely across the country, a majority of six justices on June 14 agreed random workplace drug tests at a New Brunswick pulp mill were unreasonable.

They said Irving Pulp and Paper Ltd. had no right to unilaterally impose mandatory, random alcohol breathalyzer testing.

The court said an employer must establish a substance-abuse problem in a safety-sensitive work environment before such random screening can occur.

The majority found the employer’s evidence did not meet that test – seven instances over 15 years where employees were under the influence and the testimony of a former superintendent who said there was pervasive alcohol abuse. Three justices dissented, saying employers were being asked to meet too high a threshold.

The unions maintain employers like drug-testing programs because they give the impression that something decisive is being done about safety, but they don’t work.

After the Supreme Court decision, B.C.’s biggest mining company, Teck, said it would maintain the program of random tests it began in December for 4,000 miners, managers and contractors at five provincial coal mines.

The company says different conditions exist, though United Steelworkers president Alex Hanson disagrees: “We’re going to be going after the company. They should not be doing this. The highest court in the land has tossed out testing without reasonable cause.”

Labour arbitrators have their work cut out for them, said Ritu Mahil, a lawyer at Lawson Lundell who specializes in employment law.

“Privacy rights don’t trump the employers’ rights, but the court has placed a high value on them,” she said.

“Now labour arbitrators will have to interpret that and apply it. They will have to assess what constitutes sufficient evidence, where are the workplace safety concerns and how do they balance against privacy rights.”

Mahil explained that the decision affects not just workplaces like mines, oil rigs or chemical plants that have typically been found to be inherently dangerous.

“We have some guidance to all employers in the decision that there cannot be an unreasonable intrusion to employee rights to privacy,” she said, and that has implications for workplace surveillance or checks of employee lockers.

“This is not the end. This is the beginning of the inquiry. It didn’t address an employer’s right to manage the workplace and ‘just cause.’ ” There are plenty of wrinkles and situations where drug testing is a condition of work, she added.

In B.C., for instance, Mahil said a number of employers and unions have agreed to a construction labour-relations regime that includes pre-access testing.

“Unions and employers have agreed that employees, before appearing at the work site, must be tested,” she said.

“They show whether someone has used recreational drugs and alcohol; not any drug or alcohol dependency, just use.”

Similarly, in Alberta, Suncor Energy Inc. is battling over random testing in the oilpatch with another branch of the same union that fought Irving, the Communication Energy and Paperworkers Union of Canada.

The union agreed to certain types of drug testing in its collective agreement, including pre-employment screening and with-cause drug testing.

But it fought Suncor’s plan for random tests and won an injunction last year that was upheld by the Alberta Court of Appeal in a ruling that said the program represented “a significant breach of workers’ rights.”

Suncor said that since 2000, three of seven employees who died on its site were under the influence of alcohol or drugs. It also argued that of 413 post-incident tests since 2009, 36 employees have tested positive for drugs or alcohol.

In light of the Supreme Court decision, everyone now is watching that arbitration to see how the balancing of rights is achieved – and whether Suncor passes the test.

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