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Employee privacy knocks out safety in Supreme Court of Canada fight

The Supreme Court of Canada (SCC) has weighed in on random alcohol testing in unionized workplaces. At first glance, it may look as though the result is that, irrespective of employer concerns about the need to engage in testing to ensure safety in the workplace, random testing may be down for the count. A closer look shows, however, that it may be down — but it is not out cold.

The ring in which this match was fought was a labour one. If one month equaled a round, this one went seven. In a split six to three decision, the SCC decided that privacy wins — this time.

“Privacy” was the boxer in the black shorts, the union favourite. Wearing high-visibility white shorts was “safety,” the management favourite. Odds were seven to four that safety would win.

Safety had a great track record with multiple knockouts. Privacy’s record was solid, but safety was bigger, stronger and ready to rumble, as the stakes were high. If safety broke down due to impairment in the workplace, people could die or be seriously injured. Property could be damaged and the environment harmed. If privacy lost, the integrity of the person could be damaged — fundamentally important, no doubt, but not potentially fatal.

Safety came out swinging with the fact its home turf was a workplace: the Irving Pulp and Paper Plant, near a large body of water, in an undisputedly dangerous workplace. Privacy had an advantage, though. Safety underestimated the evidence it would need to show that random alcohol testing was needed in the workplace, thinking that its record of eight alcohol related incidents in 15 years spoke for itself. Its workplace being “inherently dangerous” was thought to be enough. In fact, in the last fight with the New Brunswick Court of Appeal acting as the referees, it had been enough.

Ultimately, the SCC ring proved bigger, and the referees tougher. 

Following arbitral decisions rather than accepting the analysis approved by the New Brunswick Court of Appeal, the SCC made call after call on privacy’s side. Safety wore out. Being a dangerous workplace was not enough. Safety couldn’t land any solid punches that showed there was a pre-existing problem in the workplace to justify random alcohol testing. Strength fading — with no expert evidence on the deterrent effect of random testing to prop safety up for a much needed second wind — safety was left fractured and bleeding in the ring.

Most of the spectators left feeling defeated. They wondered if the outcome would have been different if safety had fought in a non-unionized ring. They also wondered if the loss of this fight would slow safety down in its quest to wipe out drug and alcohol related impairment in the workplace.

The SCC majority decided the expected safety gains to the employer ranged from “uncertain to minimal,” and the impact on employee privacy was “severe.” So privacy prevailed over safety — this time.

Following this decision, it will likely be harder to establish random alcohol (or drug) testing as necessary to achieve a safe workplace, and protect workers, the public and the environment. Unfortunately, this decision is also likely to result in more, rather than fewer, rounds in the ring. However, as the SCC held, “...[it] is not to say that an employer can never impose random testing in a dangerous workplace. If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified.”

Union versus non-union  

The SCC determined the issue in this case was whether Irving’s unilateral imposition of random alcohol testing for employees, in safety-sensitive positions, was a valid exercise of Irving’s management rights under the collective agreement. The court applied the “KVP test,” which sets out that a rule or policy with disciplinary consequences, unilaterally imposed by an employer, must not only be consistent with the collective agreement, but must also be reasonable. Finding no general problem of abuse in the Irving workplace, the court found the random alcohol testing policy, even when limited to safety-sensitive positions, to be unreasonable.

That test is different than the one in a non-union context, which comes out of the “Entrop” case. While the SCC worked hard to keep its analysis restricted to the context of the unionized workplace, the general principles from this case are also applicable in the non-union context, in that any breach of employee privacy must be reasonable in the circumstances. 

As the SCC stated in its decision, “...even in a non-unionized workplace, an employer must justify the intrusion on privacy resulting from random testing by reference to the particular risks in a particular workplace. There are different analytic steps involved, but both essentially require attentive consideration and balancing of the safety and privacy interests.”

If Irving Pulp and Paper had negotiated with the union during bargaining, and the result was that random testing was incorporated into the collective agreement, there would have been no grievance and no fight. However, given this decision, it is highly unlikely that many unions will agree to random drug or alcohol testing being incorporated into collective agreements.

Pre-existing problem 

The SCC left open the possibility that reasonable cause for random testing (drug or alcohol) could be established by factors other than evidence of a problem in the workplace, such as proof random testing has a deterrent effect, or that there is a problem generally in the community that is likely to affect the workplace at issue. Getting the proof is something the Drug and Alcohol Risk Reduction Pilot Project is working diligently on in Alberta’s oil sands.

Even though this is a labour decision, having evidence of an existing problem will be of great benefit in both unionized and non-unionized contexts. We encourage employers to work with their unions to address this serious issue. It should not be a “fight,” handy analogy or not.

Both employers and unions have a vested interest in safety. Where a union does not assist in this regard, working with local police, civic authorities and other community resources, in addition to carefully chronicling your organization’s own experience, can go a long way in getting the evidence to show there is problem that needs to be addressed, and that in the balancing of interests, safety should prevail.

Supervisor effect

The SCC also appears to be sending the message that an employer cannot simply rely on the “piss truck” — as alcohol testing facilities are known colloquially in the workplace — to address impairment in the workplace. Supervisors who are well trained to recognize signs of impairment (whatever the cause) have been proven time and again to be a very effective means of addressing impairment and increasing safety. Unobservant supervisors are potentially an employer’s greatest weakness. 

It is an unfortunate fact that sometimes supervisors or working foremen identify more with those they supervise than the organization they work for and, in an effort to “protect” workers from disciplinary action, look the other way. Random testing takes this element away. Enacting a “medical” model that does not result in automatic disciplinary action also mitigates the risk of a supervisor looking the other way out of misguided compassion. 

An effective employee assistance program also goes a long way, as does a comprehensive privacy policy that effectively and meaningfully protects employee privacy interests. With these elements in place it is also far more likely a random drug and/or alcohol policy will pass scrutiny, and be seen by workers to be more reasonable.

Just as any fight in the ring depends on the strength of the boxers, the legality of random testing continues to depend on the circumstances of the particular case.

The next key fight will likely be in the Alberta oil sands. Suncor’s arbitration hearing, with respect to random drug and alcohol testing, is ongoing. Hearing dates are scheduled through to the fall of 2013. This battle could also play out in British Columbia where Teck Mining is proceeding with random drug and alcohol testing, given that a union-requested injunction was not granted pending the outcome of the grievance arbitration. 

So, stay tuned — there is sure to be another “rumble” or two coming to a workplace near you. Continued debate about the testing of employees in dangerous

and safety-sensitive workplaces, where there are indications of a problem, is well worth it to achieve safer

workplaces.

Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and now leads Heenan Blaikie's national OHS and workers' compensation practice. She can be reached at cedwards@heenan.ca or (416) 360-2897.

This article was co-authored by 

Loretta Bouwmeester. She is a partner in Heenan Blaikie’s Calgary office and a member of the firm’s national 

OHS and Workers’ Compensation Practice Group. She

 can be contacted through e-mail at 

lbouwmeester@heenan.ca.

Cheryl A. Edwards

Cheryl Edwards is a former occupational health and safety prosecutor with almost 30 years of experience. She can be reached at (647) 777-8283 or cedwards@mathewsdinsdale.com, or visit www.mathewsdinsdale.com for more information.
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