2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Random Alcohol Testing Permitted in Dangerous Workplaces
Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, 2011 NBCA 58
On July 7, 2011, the New Brunswick Court of Appeal issued a decision that will alter the landscape of alcohol testing in the workplace. The Court upheld an employer’s random alcohol testing policy of those employed in safety-sensitive positions at an inherently dangerous workplace.
In 2006, Irving Pulp and Paper (“Irving”) implemented a workplace policy allowing unannounced, random alcohol tests for employees in safety-sensitive positions at its paper mill. The employees to be tested were selected by an off-site computer that randomly chose 10% of those in safety-sensitive positions in any given 12-month period.
The grievor, Day, worked as a millwright, which was considered a “safety-sensitive position”. Day was randomly selected for a breathalyzer test. The test revealed a blood alcohol level of zero. However, Day felt humiliated and degraded by the notification and testing process. The Union grieved the policy, arguing there was no reasonable grounds to test Day and the ability to conduct random tests should depend on the history of alcohol-related incidents in the workplace rather than the level of danger in the mill.
Arbitration Board Decision
Neither party debated the fact that a breathalyzer was considered a minimally intrusive method of testing. The majority of the Arbitration Board held that there was a distinction between “dangerous” workplace and “ultra-dangerous” workplace. In a dangerous workplace, the onus rests on the employer to demonstrate a history of alcohol-related incidents and a level of risk in its workplace sufficient to justify random alcohol testing. However, if an employer is able to establish the workplace is “ultra-dangerous”, no further evidence is necessary to justify random alcohol testing. In other words, no proof of a history of alcohol-related incidents is required.
The Board found that the Irving paper mill was a dangerous workplace, but that it was not ultra-dangerous. As such, Irving was required to provide evidence of alcohol-related incidents to prove that there was a sufficient risk in the workplace to justify random alcohol testing. There had only been a total of five alcohol-related incidents at the mill in the past 15 years. This was found to be insufficient to justify a random alcohol testing policy.
The Board concluded (1) that Irving was a dangerous workplace, but that it was not “ultra-dangerous; and (2) that the number of alcohol-related incidents in the past 15 years did not demonstrate that there was a significant problem with alcohol-related impaired performance at the mill. Because there was not a history of a significant problem with alcohol-related incidents, Irving had failed to justify the implementation of random alcohol testing. As such, the Board found Irving’s random alcohol testing policy to be unreasonable.
Court of Appeal Decision
The Court of Appeal found that the Board had erred in creating a new category of “ultra-dangerous” operations for which random alcohol testing was acceptable. The distinction between dangerous and ultra-dangerous workplaces is not part of the test of determining the validity of alcohol and drug testing policies. Once a workplace is declared “inherently dangerous”, there is no need for the employer to establish the existence of an alcohol problem in the workplace.
The Court of Appeal provided further explanation as to what might constitute an inherently dangerous workplace. In doing so, the Court noted that the following types of workplaces had been found to be inherently dangerous in previous decisions:
- Mining operations;
- Oil refineries;
- Manufacturing plants involving the use of chemicals;
- Warehouse and distribution facilities using heavy-duty industry vehicles;
- Nuclear power plants;
- Chemical plants;
- Airlines; and
- Railway operations.
However, the Court of Appeal noted that there has been a resistance to classify trucking operations as inherently dangerous. Whether a trucking operation will be defined as inherently dangerous will likely depend on what is being transported and the deterrent effect of the Criminal Code provisions dealing with impaired driving. Note: trucking operations which engage in cross-border transportation into the USA may conduct random drug and alcohol testing because American legislation requires drivers in the USA to be subject to random testing.
The Court of Appeal looked specifically at the Irving mill operation. It concluded that if a railway company, which transports hazardous materials to various workplaces, is an inherently dangerous workplace then it should follow that a company which uses those materials in its operations is also an inherently dangerous workplace. Furthermore, the fact that the mill had a pressure boiler with a high potential for explosion also weighed in favour of finding it to be an inherently dangerous workplace. Finally, the Court considered the mill’s intra-city location and its proximity to the Saint John River and the Bay of Fundy in terms of the potential impact on the environment if there was a major catastrophe, such as a chemical spill. Taking all of this into consideration, the Court concluded that the mill was an inherently dangerous workplace.
Having found that the paper mill was an inherently dangerous workplace, and having regard to the minimally intrusive nature of the breathalyzer and the fact that the random alcohol testing policy only applied to those in safety-sensitive positions, the Court of Appeal concluded that Irving’s random alcohol testing policy was reasonable and that the grievance should have been dismissed.
What This Means for Employers
Prior to this decision, random alcohol testing was generally considered unreasonable because the case law regarding drug and alcohol testing had established that it was exceedingly difficult for employers to justify the use of random drug and alcohol testing. The Court of Appeal was careful to restrict its decision to random alcoholtesting, noting that drug testing is more problematic because it cannot measure present impairment.
The Court of Appeal decision is clear that random alcohol testing is only permissible where:
- its application is limited to those employees in safety-sensitive positions; and
- the workplace is inherently dangerous or the workplace has a sufficient history of alcohol-related incidents to warrant random alcohol testing.
Furthermore, the Court warned that an alcohol testing policy will only be found to be reasonable if it includes accommodation as part of the policy where an employee is found to have a positive test result.