October

"More and more Canadians are being asked to prove, in the name of safety, that they are sober before clocking in at work. Earlier this month, the Supreme Court of Canada issued its first ruling on this 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. The court said an employer must establish a substance-abuse problem in a safety-sensitive work environment before such random screening can occur. 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. ""Privacy rights don't trump the employers' rights, but the court has placed a high value on them,"" said Ritu Mahil, a lawyer at Lawson Lundell specializing in employment law. ""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."" "

An employee's right to ensure workplace safety versus an employee's right to privacy, have been competing rights present in the workplace for many years. In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Limited, the Supreme Court of Canada (SCC) recently weighed in on how to balance these rights in the context of an employer implementing a drug and alcohol testing policy. In this case, a majority of the SCC favoured employees' privacy rights. Key in the majority's decision was that the employer could not demonstrate the necessary safety concerns to justify the random alcohol testing component of its policy made on employee privacy. As such, the testing was found to be unlawful. While Irving does not produce an ideal result for employers who understandably see the safety and deterrence benefits that random alcohol testing provides, it is important to stress that Canada's highest court has not prohibited such testing in its entirety. Rather, employers with dangerous operations who wish to unilaterally impose such a policy must adequately justify and substantiate the policy's reasonableness through verifiable evidence that the workplace in question has problems with alcohol use.

Drug and alcohol testing of employees in the construction industry continues to be an area of concern and constantly developing law for employers. An arbitration award out of Ontario recently held that pre-access testing was an unreasonable exercise of management rights and it was in violation of the applicable human rights legislation. The arbitrator relied heavily on the Irving Pulp and Paper Ltd. ruling that there was an obligation upon employers to justify the invasion upon employee privacy rights occasioned by drug and alcohol testing. If this award is followed, it means an employer must show a pre-existing drug or alcohol problem at its worksite before it can implement random testing or pre-access testing. Moreover, it appears an employer will not be able to rely on general statistical averages regarding substance use in the region, or on effectiveness of similar programs for other employers to show a problem. At a minimum, an employer implementing drug testing will need evidence that those statistical averages relate to the worksite in question and, more likely, will require actual evidence from its own specific workplace before it can justify not-for-cause testing. Once it clears this hurdle, employers will still be faced with showing that the testing is reasonably balanced against privacy rights by showing that the policy is effective and impairs employee rights to the minimal extent necessary.