Irving Pulp & Paper, Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30 is the latest decision in a long line of cases that deal with testing for alcohol impairment in the workplace. The New Brunswick Court of Appeal found that randomly testing for alcohol impairment in the workplace is reasonable where the employer’s operations are inherently dangerous, the position is safety-sensitive and where a minimally invasive device like a breathalyzer is used to determine impairment.
Case History
Irving Pulp & Paper unilaterally instituted a mandatory random alcohol testing policy for workers that held safety sensitive positions. The policy defined a safety sensitive position as “a position which the company determines has a role in the operation where impaired performance could result in a significant incident affecting the health and safety of employees, customer, customers’ employees, the public property or the environment.” There were 334 prospective employees on the safety sensitive list that could be tested. In any 1-year period an offsite computer would select 10% of the names on the 334 person list for testing. The testing would be performed by breathalyzer.
Millwright Perley Day held a safety sensitive position at Irving Pulp & Paper and was one of the names selected to participate in the random test. Though Mr. Day passed the breathalyzer a policy grievance was filed to challenge testing without an alcohol related incident.
At arbitration the board deemed Irving Pulp & Paper’s environment dangerous but also found that that it was not “ultra-dangerous” like a nuclear power plant, airline, railroad, chemical plant to justify testing without prior incidents of alcohol use. In addition, the board found that Irving Pulp & Paper did not establish a significant record of alcohol impairment to justify random testing. In turn, the grievance was upheld by the board and Irving Pulp & Paper’s alcohol testing was deemed unlawful.
The arbitration decision was judicially reviewed by the New Brunswick Court of Queen’s Bench and overturned. The court found it inappropriate for the arbitration board to make a distinction between “ultra-dangerous” and “dangerous” workplaces. Specifically, the judge found it unreasonable to look at the history of alcohol use where the workplace was deemed dangerous and the “potential for catastrophe exists.” As such, the court found that Irving Pulp & Paper struck an appropriate balance under the circumstances by testing individuals with safety sensitive positions through a minimally intrusive breathalyzer.
The union appealed the Queen’s Bench decision to the New Brunswick Court of Appeal and argued that: “1.arbitrators in Canada overwhelmingly rejected random unannounced random drug and alcohol testing; and 2. sufficient evidence of a pre-existing drug or alcohol problem in the workplace is a pre-condition to the enforceability of such policies, unless the workplace qualifies as ultra-dangerous.” The Court of Appeal, however, rejected the union’s arguments and the decision to dismiss the grievance was upheld. Essentially, the court maintained that random alcohol testing in the workplace was justified despite a lack of alcohol related incidents because the operations were inherently dangerous and a minimally invasive breathalyzer test was relied upon to test individuals in safety sensitive positions.
Significance to Employers
The 2000 Ontario decision in Entrop v. Imperial Oil established that random breathalyzer testing of employees in safety sensitive positions is a justifiable exercise. In Entrop, what constituted a safety sensitive position was quite clear because Entrop was engaged in the inherently dangerous oil refinery business.
The Irving decision, though not necessarily binding in Ontario, will still be of considerable assistance to those employers whose employees may not be engaged in “ultra dangerous” work, like oil refining, but performing inherently dangerous work nonetheless. Employers should note that the test to detect impairment is also important. While a breathalyzer test is considered minimally intrusive and therefore appropriate for random testing of safety sensitive positions, drug impairment testing by use of saliva swabs has been found to be overly intrusive, even if the business activity is oil refining.
The CCP team is experienced in dealing with substance use issues and balancing an employer’s health and safety concerns with the employee’s right to privacy. As such, consider consulting your CCP lawyer prior to instituting drug and/or alcohol testing policies and before dealing with a specific episode of substance use.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.
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