Random drug testing at work can seem like an invasive act but can be justified as a safety precaution in the eyes of the employer. The Supreme Court of Canada believes there must be reasonable cause for an employer to implement a random drug test policy. “Just cause” is a major factor when laying the foundation for the legal parameters for random drug testing in Canada.
The Supreme Court of Canada has provided clarity on random testing in the case of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 [“Irving”].
In this case, the employee was subjected to a random alcohol test, conducted by a breathalyzer, while working at a paper mill. The policy at this paper mill dictated that 10% of employees in safety-sensitive positions were to be randomly tested over the course of a year. If the subject happened to fail the test, or decline to participate in the testing, it allowed grounds for dismissal of employment.
The conditions of daily operations at the mill presented the risk of hazardous situations at the workplace to not only employees but to the public, property and the environment. Prior to the implementation of this policy, there were no recorded accidents or injuries within the 15 year period.
A drug or alcohol testing policy needs to be reasonable before a company can introduce it into the workplace. Reasonableness depends on whether the employer can show “just cause” for introducing such a policy. Just cause is dependent on the facts ranging from case to case. In the case of Irving, the Supreme Court decided that eight occasions of alcohol consumption in 15 years at the mill did not provide the employer with just cause for implementing the random testing policy. Even though this case brought clarity to the law, courts and arbitrators have confused interpretations to the application of “just cause”.
In Canada, there is no legislative regime that governs drug and alcohol testing in the workplace. Yet, it is the responsibility of employers to ensure compliance in respect to human rights and privacy legislation prior to policy implementation. In order to implement a policy which includes a testing component, employers must be able to justify the intrusion on the employee’s right to privacy. The level of danger in a workplace does not allow full justification of random drug testing with a place of work in Canada.
This is an abridged section from the book, “Employment Law Solutions” by Malcolm MacKillop, Hendrik Nieuwland, Meighan Ferris-Miles.