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DAILY NEWS Jan 15, 2013 12:10 PM - 0 comments

Commentary: The case for random alcohol testing by employers in dangerous workplaces

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By: Norm Keith, special to The Northern Miner
2013-01-15

On Dec. 7, 2012, the Supreme Court of Canada heard argument on the subject of random alcohol testing by employers in dangerous workplaces. The case arose from a union grievance and arbitration challenging the policy of Irving Pulp & Paper Ltd. in New Brunswick. The union, the Communications, Energy and Paper Workers Union of Canada, Local 30, was successful in having the random alcohol testing by employers of certain “safety-sensitive positions” set aside as being unreasonable given the circumstances of the case.

I had the privilege of representing the Alliance of Manufacturers and Exporters of Canada, as an intervener, in support of the position of the respondent employer, Irving Pulp & Paper. The extensive number of interveners, the quality of legal counsel retained, and the full nine-member panel of the Supreme Court sitting, all indicated that the Supreme Court understood that this issue was of critical importance to employers, unions, workers and the Canadian public.

This article does not attempt to fully canvas all of the legal arguments, submissions, precedents, and authorities cited in the written and oral submissions before the Supreme Court. However, it does attempt to outline, in a straightforward and succinct manner, the essential arguments made with respect to the substantive issue of whether or not there should be random alcohol testing of persons employed in safety-sensitive positions in workplaces that are generally regarded as dangerous workplaces.

Arguments in favour

1. Evidence from the arbitration decision was uncontradicted that Irving Pulp & Paper had a number of safety-sensitive positions, where an incident could result in hazard to workers and even explosions and catastrophic failure. This could result in an explosion, damage to the plant, worker injury and fatalities, as well as serious environmental damage. There was also clear inference from the proximity of the plant to residential areas of Saint John, N.B., that members of the public were also potentially at risk if there was a major incident or explosion at the plant.

2. The arbitration board’s requirement that there needed to be evidence of an “ultra-dangerous” circumstance, before random alcohol testing was permitted, was unreasonable given the level of hazard to workers, the plant, the environment, and the public residing in Saint John.

3. There was both expert testimony at the arbitration hearing, and support in other research, literature, and precedents, that the deterrent effect of random alcohol testing was significant and valid objective of the policy.

4. The implementation of the random alcohol testing program at the pulp and paper plant, in addition to its deterrent effect, would also be able to detect the use of alcohol, either prior to or during a shift, of a worker in a safety-sensitive position in the plant, this combined effect of deterrence and detection would add considerably to the safety culture, and a priority on prevention of workplace incidents, accidents, and fatalities.

5. The dignity and privacy of workers at the dangerous workplace would be minimally interfered with since the random alcohol testing procedure used a device comparable to that of a roadside breathalyzer test, used in R.I.D.E. programs, which have been approved by the Supreme Court as being lawful and reasonable, and not in violation of Section 8 or any other provision of the Charter of Rights and Freedoms.

6. The Mining Association of Canada took an even broader position, when, in its written material, and speaking on behalf of mining associations across Canada, it said, “The Mining Associations submit that the distinction between alcohol and drug testing, at least in respect of the legality of random testing, is misplaced . . . The purpose of random testing [of both alcohol and drugs] is not to detect or improve impairment, but to reduce risk through deterrence and detection of safety risks.”

7. I argued on behalf of the MAC that the strict legal duty under occupational health and safety regulatory and criminal law on employers to take every reasonable step for the health and safety of workers included random alcohol testing. Since employers across Canada are now exposed to regulatory and criminal prosecution and penalties, senior executives exposed to fines and jail terms, (and unions having no legal responsibility under occupational health and safety or criminal law for the safety of workers) it is incumbent on employers in dangerous workplaces to take every reasonable step available, including random alcohol testing, to ensure workers are safe. References to the due diligence standard in the Supreme Court decision City of Sault Ste. Marie, and the relatively recent Bill C-45 amendments to the Criminal Code, creating a new crime of occupational health and safety criminal negligence, placed a strict duty on employers to take every reasonable step. Random alcohol testing, to both deter and detect workers who attend at a dangerous workplace under the influence of alcohol, is an important step employers can take to comply with their legal duties.

Arguments against

1. The union argued strenuously that arbitrators and the courts across Canada have recognized employee’s rights to privacy, both supported by the Charter of Rights and Freedoms and the common law for unionized workers, therefore, unionized workers should have the right to not be involuntarily touched, searched, or seized as a result of a reasonable expectation of privacy and dignity in the workplace.

2. A unilateral management policy, such as that of the random alcohol testing policy of Irving Pulp & Paper, is subject to the K.V.P. test, regarding the reasonableness of policies and rules that are not negotiated as part of the collective agreement, but rather impose unilaterally under a management rights clause in the collective agreement or the inherent right of management to manage and control its workplace.

3. Even with new testing technology, the union argued that the ability of alcohol or drug testing to establish impairment at the time of testing does not eliminate the need for an employer to meet the threshold of reasonable cause prior to initiating testing. The union argued that the employer “bears a heavy onus if it wants to justify random, without cause, testing”.

4. In the Power Workers’ Union factum, in support of the appellant union and opposing random testing in this case, the union said, “Taking of bodily fluids, in any form, is invasive and engages these rights . . . This is particularly so for compelled searches of a person’s body.”

5. The Alberta Federation of Labour, in support of the union and against random alcohol testing in this case, said, “The New Brunswick Court of Appeal’s decision will have a devastating impact on the long-standing test labour arbitrators apply when assessing the reasonableness of an employer’s policy, particularly one that impacts in employees’ privacy, dignity, and bodily integrity rights.”

6. The Canadian Civil Liberties Association, in support of the appellant union and opposing random alcohol testing in this case, said, “Requiring individuals to choose between their privacy and their job has a serious impact on the individual’s ability to live a life of dignity . . . because work is fundamental to a person’s life, “the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity and self-respect.””

Final comments

Random alcohol testing is neither a cure-all nor a panacea to all problems associated with workers attending at or consuming alcohol or drugs in their workplace. However, the importance of the deterrent effect, in addition to detection and acknowledgement of the problem, does reasonably support the position that in safety-sensitive positions, in dangerous workplaces, that random alcohol testing (and drug testing as well, given modern oral fluid technology for testing) is not only appropriate, but a reasonable step to protect worker safety. We need only provide several examples of the importance of preventing the impairment of workers by alcohol or drugs and their devastating effects on workers, their families, and members of the public, to illustrate the point.

The argument in the Irving Pulp & Paper case were not that there should be widespread alcohol testing of every employee in every workplace. Simply asking for periodic, unannounced random alcohol testing, through a non-invasive means of a breathalyzer seems to be a rather small, even trivial intrusion of a worker’s sense of privacy, dignity and self-respect in the workplace.

If workers are that sensitive, when they in fact have such serious responsibility for the health, safety and well-being of their fellow workers, the environment, and members of the public, then there are arguments to be made that such a worker’s perception wholly disrespectful of their co-workers safety.

The problem of alcohol and drugs in the workplace is not just an occupational risk, but one that affects society generally. The use of alcohol and drugs in universities, as well as its glorification in the media and on the streets, clearly impact the attitudes, use and abuse by workers both before they attend workplaces, as well as when they are at work.

There is clearly a need for a broader dialogue on alcohol and drug use in society. The Irving Pulp & Paper case does not seek to impose widespread random alcohol testing on all workers. Such a program would likely be deemed excessive by even the most aggressive proponents of alcohol and drug testing in the workplace. However, this case does give the Supreme Court the opportunity to provide comment, leadership, and a decision with respect to the availability of an employer in a dangerous workplace for those positions that are objectively determined to be safety-sensitive positions, to take the reasonable step of implementing a comprehensive substance-abuse program that, among other important aspects, may include random alcohol testing. There remains to be seen, until the Supreme Court renders its decision, what the result in this case will be.

Norm Keith is a partner in Gowlings’ Toronto office and practises employment, regulatory and criminal law. He is the leader of the firm's National Occupational Health and Safety practice. He specializes in regulatory and corporate crime, occupational health and safety, environmental, workers' compensation and workplace risk management litigation, and corporate governance. He also advises on matters including privacy law, labour and employment law, and alternate dispute resolution. For more information on alcohol and drug testing, as well as other prevention programs, please feel free to contact Norm Keith at tel. 1-416-862-5699 or norm.keith@gowlings.com.



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