October 02, 2013

On June 14, the Supreme Court of Canada issued its ruling in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., a decision with broad implications for drug and alcohol testing in the workplace. The six-member majority ruled that, because of the need to balance the employer’s interest in the safety of its operations against employee privacy, an employer cannot unilaterally subject employees to a policy of random alcohol testing, even in dangerous workplaces, unless there is evidence of a general problem in the workplace with alcohol abuse. In a special audio session Lancaster’s panel of experts will address some of the controversies involved in drug and alcohol testing and discuss the implications of the Court’s ruling for employers and employees. Issues to be discussed include:

    • Drug and alcohol testing: Does testing for alcohol stand on a different footing from testing for drugs? Why? Is a drug test more invasive of privacy than a breathalyzer test? Can drug and alcohol testing technology provide immediate detection of impairment? What technology is usually used for drug tests? How reliable is urinalysis? Are hair or saliva tests less invasive or more effective alternatives to urinalysis?
    • The “balancing of interests” approach: What did the Supreme Court in Irving say about the application of the “balancing of interests” approach to determine the reasonableness of unilaterally imposed employer rules or policies? In the context of random drug and alcohol testing, when will the need for the rule outweigh the impact on employees’ privacy rights?
    • The “risk-based” approach: When will decision-makers allow random drug and alcohol testing on the ground that it is rationally connected to a need to eliminate safety risks in a hazardous work environment? Must the employer demonstrate that alcohol or drugs are a problem in the workplace before testing is permitted?
    • Dangerous workplaces: Does the Supreme Court of Canada’s ruling in Irving regarding the justification of random alcohol testing policies in dangerous workplaces differ from previous arbitral jurisprudence? In a dangerous workplace, are employers entitled to test individual employees without having to show reasonable cause? What factors play a role in determining whether a workplace is dangerous? Does the classification of a workplace as “dangerous,” “inherently dangerous,” or “highly safety-sensitive” make a difference?
    • Evidentiary threshold: By upholding the arbitrator’s decision in Irving, did the majority of the Supreme Court require an elevated evidentiary threshold to justify alcohol and drug testing? What justifications did the dissenting opinion provide in support of a lower evidentiary threshold? Must employers establish the existence of “a problem” or “a significant problem” of alcohol abuse in the workplace to justify testing? Does evidence of alcohol or drug use need to be “tied” or “casually linked” to accidents, injuries, or near-misses to justify a drug or alcohol testing policy?
    • The role of arbitral consensus: What importance did the majority of the Supreme Court in Irving ascribe to arbitral caselaw in reaching its decision? Did the dissenting judges agree?