The Alcohol Consensus

I wanted to kick this blog off with something that we’ll all be excited about. So today’s subject will be alcohol!

Drug and alcohol testing doesn’t normally make the news unless professional athletes are involved. As a result, we tend to think of testing as an issue of cheating versus fair play, as it is when we’re talking about Lance Armstrong and Alex Rodriguez. But what if we’re talking about an average employee in an industrial workplace? In that case, drug and alcohol testing engages a much more delicate conflict: safety versus privacy.

The Bottom Line

The Supreme Court of Canada has recently held that even in a dangerous workplace, an employer is not normally permitted to engage in random alcohol testing of employees. However, random testing may be permitted if there is a demonstrated problem with alcohol abuse in the workplace, which is significant enough to warrant overriding employees’ privacy interests in the circumstances, and cannot be addressed through less intrusive means.

The Supreme Court’s decision still allows employers to require alcohol testing for employees in safety-sensitive jobs if there are reasonable grounds to believe the employee is impaired, or if there is a safety incident, accident or near miss where alcohol testing may be necessary to determine the cause.

The decision does not deal with random drug testing, or with non-union workplaces, but the same principles most likely apply.

The Analysis

There’s a Clear, Overwhelming Consensus. We Just Can’t Agree on What It Is.

Here’s what I find amusing about the Supreme Court’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (“Irving”), released on June 14, 2013. The case turned on whether an arbitration board had properly applied earlier case law. Both the majority decision (6 judges) and the dissent (3 judges) agreed that there was a clear, overwhelming consensus in that earlier case law. The majority upheld the board’s decision because it followed the consensus. The dissent would have overturned the board’s decision because it failed to follow the consensus. So it seems that the Supreme Court judges couldn’t reach consensus on what the consensus was.

What’s interesting about all of the judges’ reasoning is that arbitration boards aren’t legally required to follow previous arbitration decisions, the way judges must follow the decisions of earlier judges. The Supreme Court is now saying that nonetheless, arbitration decisions can be overturned if they depart from the existing consensus without a reasonable justification for doing so. Which makes a lot of sense, because it’s good for everybody to be able to predict how a future arbitrator might act. But it does seem to make arbitration more formal and court-like, with all the good and bad that goes along with that.

You don’t want to hear about the increasing formalization of the labour arbitration system, though. You want to hear about alcohol! So let’s move on to . . .

Safety Versus Privacy: The Alcohol Consensus

There may not be a consensus on what the consensus is, but there at least seems to be a consensus that the consensus includes the following principles.

Drug and alcohol testing is a balancing act. Forcing an employee to give you a urine or saliva sample, or even a breath sample using a breathalyser, can be a serious violation of personal privacy. On the other hand, showing up drunk to a dangerous workplace – heavy machinery, toxic chemicals, risks of electrocution – can put both the employee and his or her colleagues at risk. As a result, the question in each case is whether the safety interest outweighs the privacy interest.

For employees in safety-sensitive jobs, an employer may require alcohol testing if there is reasonable cause to suspect the employee is impaired, or if a safety incident, accident or near miss has occurred and the employer needs to learn whether alcohol was a contributing factor. In these situations, the safety concern outweighs the privacy concern.

Random testing, on the other hand, is generally not allowed. However, it might be allowed where there is a history of alcohol problems in the workplace, and means other than random testing have not been successful to address them.

What Do We Mean by a History of Alcohol Problems?

This is where the consensus (or, at least, the consensus on what the consensus is) breaks down.

The dissenting judges in Irving say that random alcohol testing is permitted in a dangerous workplace if there is evidence of alcohol problems in the workplace. In Irving, there had been about 8 alcohol-related incidents in a 15-year period, which clearly constituted evidence of a problem. The arbitration board, however, refused to permit random testing because the employer had failed to provide evidence of a significant or serious problem. According to the dissent, the board imposed a higher standard on the employer than the law demanded.

The first time I read the decision, I agreed with the dissent. None of the case law talks about needing a “significant” or “serious” problem before random testing is allowed. In a highly dangerous workplace with some kind of alcohol problem, it doesn’t make sense that an employer would have to wait until a real injury happens before it can take action.

But on a reread, I have come to appreciate the approach of the majority. They return to the principle that underlies all of the various consensuses (consensi?): a balancing between safety and privacy. They are not actually saying that random alcohol testing can never be imposed in the absence of a “significant” or “serious” alcohol problem. What the majority are saying is that in the particular circumstances of the Irving case, the evidence about safety concerns just wasn’t compelling enough to override employee privacy rights.

What the Supreme Court of Canada is saying is that in every case, the safety benefits of testing must be balanced against the effects on employee privacy. And that’s hard to argue with.

Disclaimer: This blog post is intended to provide readers an update on the law along with the author’s personal reflections. Nothing in this post or in the comments should be taken as legal advice or as creating a lawyer-client relationship. For more information or to inquire about obtaining legal advice, please see the Contact and Links section of this site.   

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