Random Drug and Alcohol Testing in the Workplace Given Parameters: Irving Pulp & Paper

The issue of alcohol and drug testing in the workplace is certainly a contentious one. Some readers may know anecdotally (or not so anecdotally) of its pervasiveness among oil, or related, industry workers in Alberta. The justification typically given for such policies, which may subject workers to deeply personal tests, is the dangerous nature of the work.

In New Brunswick, the apparently competing interests of safety versus employee privacy arose in Communication, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd., [2013] 2 SCR 458 (Irving). At issue in that case was whether workplace alcohol and drug testing could be justified given the invasion of privacy that would be required and the lack of evidence of an alcohol or drug problem in the particular workplace.

The Facts

The Communication, Energy and Paperworkers Union, Local 30 (the Union) brought a grievance to the New Brunswick Labour and Employment Board (the Board) after the Union’s employer unilaterally implemented a random and mandatory alcohol testing policy in the workplace. The new policy allowed for the random selection of 10% of employees who were working in areas deemed to be safety sensitive to be tested each year. Testing positive for alcohol would result in disciplinary action against the employee, with the possibility of dismissal.

At the arbitration level the union grievance was allowed to succeed through a “balancing” process of analysis, which weighed the interests of the employer against the privacy interests of the employees and considered the lack of evidence of an actual problem with alcohol use in the workplace. The decision of the Board was appealed to the New Brunswick Court of Appeal, resulting in the setting aside of the Board’s award.

The SCC’s Proportionality Approach

At the Supreme Court, the justices divided 6-3, with the majority concluding that alcohol testing in the workplace was unwarranted without sufficient cause. Justice Abella, writing for the majority, employed a “balancing of interests” proportionality approach based on the central tenet within collective bargaining law that an employee may be disciplined only for reasonable cause. This balanced approach means that an employer may introduce a rule with disciplinary consequences only if the need to do so outweighs the negative effects on an employee’s right to privacy.

In practice, this has meant that arbitrators have found that an employer may test a given employee if there is reasonable cause to believe an employee was impaired during work, was involved in an accident at work or returned to work after a substance abuse treatment program. These conditions represent the circumstances enumerated by Arbitrator Picher in Imperial Oil Ltd and CEP, Loc 900 (Re) (2006), 157 LAC (4th) 225, in which random drug testing was permitted in the unionized workplace.

The “balancing of interests” proportionality approach was deemed to be in accordance with the arbitral jurisprudence and formed the bulk of Justice Abella’s analysis. However, the main condition that did stand out as needing to be met before the implementation of a random testing policy was the general existence of a workplace problem with drugs or alcohol. Justice Abella noted that in the case of the Irving mill, there was a definite lack of an alcohol abuse problem to justify the unilateral introduction of a random testing policy. Indeed, the Board had found that there had been merely eight incidents over a fifteen-year period, and, as such, there was a “very low incremental risk of safety concerns based on alcohol-related impaired performance of job tasks at the site” (para 47).

Thus the proportionality approach taken by Justice Abella found that the possible safety gains to be had by implementing a testing policy were minimal in contrast to the intrusive impact the policy would have on employee privacy. Rather, an “employer must bring itself within the scope of the management rights clause of the collective agreement” (para 2), if safety measures are not negotiated by the employer prior to their implementation. As such, Justice Abella quoted the arbitrator’s decision in affirming “the invasion of that privacy by the random alcohol testing policy is not a trifle. It affects a significant inroad. Specifically, it involves a bodily intrusion and the surrender of bodily substances. It involves coercion and restriction on movement” (para 14).

Wrestling with Personal Autonomy

Further, the arbitrator placed a great deal of importance on liberal ideas of the private realm and the autonomous individual in having noted that “the scheme affects a loss of liberty and personal autonomy. These are at the heart of the right to privacy” (para 14). Indeed, in R v Shoker, [2006] 2 SCR 399, as cited by Justice Abella, there was no distinction drawn between drug and alcohol testing by blood, urine or breath samples, and it was noted at paragraph 23 that, given the highly intrusive nature of such tests, they must be carried out in accordance with “stringent standards and safeguards to meet constitutional requirements.”

However, the decision in favour of the Union at the Board was not upheld at the New Brunswick Court of Appeal, and the approach taken there was described by Justice Abella as “segmented” for having declined to balance the interests of the employee with those of the employer. Rather, the Court of Appeal held that employers may unilaterally institute random testing in any dangerous work place without showing reasonable cause through an existing problem, whether the workplace be unionized or non-unionized.

Administrative Law: Reasonableness

The SCC majority also ruled that the Court of Appeal had erred in departing from a principle of administrative law espoused by the SCC that legal and factual deference should be shown to administrative tribunals from the courts, and that tribunal decisions should be reviewed only for their “reasonableness.” As a result, the majority of the SCC found that the standard for review was applied incorrectly by the Court of Appeal and that the appeal court had departed from the arbitral jurisprudence of balancing interests in reaching its decision.

Unionized vs. Non-Unionized Workplaces

In her decision, Justice Abella also distinguished Irving given its context of a unionized environment from that of the leading case of Entrop v Imperial Oil Ltd (2000), 50 OR (3d) 18 (CA), which dealt with random drug and alcohol testing in a non-unionized workplace. Although it was found that employees with addictions were protected from discipline by the Human Rights Code, RSO 1990, c H.19 (the Code), on the basis of a disability, in that case it was held that an employer may institute testing in a non-unionized workplace without fear of reprisal based on the Code if it can show that it is part of a bona fide occupational requirement (such as working in a dangerous workplace).

In contrast, the approach taken in Irving, and at the level of the Board, resulted in the finding that there was little in the collective agreement that could possibly support the employer’s claimed right to unilaterally introduce such testing into the workplace. The only possible clause was the management rights clause, 4.01, “the Union recognizes and acknowledges that it is the right of the Company to operate and manage its business subject to the terms and provisions of this agreement.” This clause gave rise to the legal issue of whether the implementation of the random testing policy could fit under clause 4.01 in the collective agreement.

In deciding that clause 4.01 did not permit such testing, Justice Abella affirmed Laskin’s holding in Re United Steelworkers, Local 4487 & John Inglis Co Ltd (1957), 7 LAC 240, noting that employers in unionized environments may not “promulgate unreasonable rules and then punish employees who infringe them” (Irving, para 22). As a result, employers in both unionized and non-unionized environments may only discipline or dismiss an employee for “reasonable cause.”

The scope of the employer’s ability to unilaterally impose rules in a union environment was established by Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co (1965), 16 LAC 73, and is known as the “KVP test.” The KVP test asserts that any rule or policy introduced unilaterally by the employer must be both reasonable and consistent with the collective agreement. The test has been used by both the courts and arbitrators in the application of the “balancing of interests” approach to determine whether the policy in question is appropriately considerate of the interests of the employer and the employee, and it was cited for that purpose in Irving (para 57).

The Dissent

In contrast, the dissenting judgment of Chief Justice McLachlin, and Justices Rothstein and Moldaver disagreed with the majority’s application of the reasonableness standard. The dissent also found the arbitrator’s award to be unreasonable in the context of arbitral precedents that had allowed for management policies of random alcohol testing in the workplace. The dissent found that the evidentiary threshold that must be met before the introduction of testing should be lower than that found by the arbitration board. In particular, the dissent found that the Board had rather artificially raised the evidence threshold required of Irving before the introduction of the testing.

Although the dissent also agreed with the majority that the proper analytical approach was that of balancing the interests between that of privacy and safety, they placed more of a focus on reviewing similar policies from related industries. The dissent additionally agreed with the majority in finding the standard for board review is that of “reasonableness,” yet they differed from the majority in finding that the Board had reached an unreasonable conclusion.

Conclusion

As a result, those with an interest in labour law might ask what the results of Irving mean for workers facing tests in such dangerous workplaces as the Alberta oil sands. One might conclude that testing policies will be challenged in greater numbers as a result of Irving, but that may not necessarily be the case. First, it appears that the SCC’s holding will apply only to unionized environments and with the caveat that the employer must have reasonable cause. However, this still leaves a lot of room for the unilateral introduction of a testing policy by the employer, given that if it can be shown that a drug or alcohol problem exists, the employer would seemingly be justified in implementing such a policy. Yet, how will such “problem” be defined as a problem requiring a policy?