Wednesday, June 26, 2013

Employee Drug & Alcohol Testing and Irving by Greg

The Supreme Court of Canada has upheld an arbitrator's ruling that a mandatory random alcohol testing program is invalid as a violation of employees' privacy rights: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34.

The Court could have reached the same result simply by deferring to the arbitrator's findings. But it instead expressed in clear terms that a long line of arbitral jurisprudence restricting employers' ability to impose testing unilaterally has given rise to a binding precedent. Per Abella J. at para. 50, 53 (citations omitted):

Early in the life of the Canadian Charter of Rights and Freedoms, this Court recognized that “the use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity”.   And it notably drew no distinction between drug and alcohol testing by urine, blood or breath sample, concluding that the “seizure of bodily samples is highly intrusive and, as this Court has often reaffirmed, it is subject to stringent standards and safeguards to meet constitutional requirements”.
(W)here, as here, the employer proceeds unilaterally without negotiating with the union, it must comply with the time-honoured requirement of showing reasonable cause before subjecting employees to potential disciplinary consequences. Given the arbitral consensus, an employer would be justifiably pessimistic that a policy unilaterally imposing random alcohol testing in the absence of reasonable cause would survive arbitral scrutiny.

The Irving decision itself reviewed an arbitration award limited to random alcohol testing, and some employers still appear intent on challenging the privacy protections set out in past arbitral decisions. But the Supreme Court's conclusions in Irving will make it much less likely that such programs will be found valid when tested.

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