The Supreme Court has released a decision on random alcohol testing. The SCC upheld an arbitration panel’s decision that random alcohol testing of a group of workers in safety sensitive positions was unjustified. The original arbitration decision is worth quoting at some length to suss out the thinking of the arbitration panel:
The question is now one of proportionality. What needs to be measured are the benefits that will accrue to the employer through the application of the random alcohol testing policy against the harm that will be done to the employee’s right to privacy. If the random alcohol testing policy is to be justified, these must be in proportion. Here the employer’s scheme gets into heavier weather.
In a word, on the evidence I heard, I do not conclude that any significant degree of incremental safety risk attributable to employee alcohol use has been demonstrated to exist in this workplace. Taken with the low testing percentages, I believe it is likely that the employer’s policy will seldom, if ever, identify any employee with a blood alcohol concentration over the 0.04% Policy cut-off limit. I therefore see little or no concrete advantage to the employer to be gained through the random alcohol testing policy.
On the other side of the balance scale, I have to consider the employee’s right to privacy. Rights to privacy and to the related right of security of the person are important and prized incidents of Canadian citizenship. Reactions to invasions of them tend to be prompt, visceral, instinctive and uniformly negative. When the testing is random — that is, without articulable cause — as it is here, an already high bar is raised even higher. This considerably increases the burden of justification on the employer.
The invasion of that privacy by the random alcohol testing policy is not a trifle. It effects a significant inroad. Specifically, it involves a bodily intrusion and the surrender of bodily substances. It involves coercion and restriction on movement. Upon pain of significant punishment, the employee must go promptly to the breathalyzer station and must co-operate in the provision of breath samples. As we saw with Mr. Day, there can be an element of public embarrassment. Taking its results together, the scheme effects a loss of liberty and personal autonomy. These are at the heart of the right to privacy.
On the evidence, the gains likely to result to the employer from random alcohol testing rule run from uncertain to exist at all to minimal at best. The inroads into employee privacy are significant and out of proportion to any benefit, actual or reasonably to be expected to be had by the employer and disclosed by the evidence. The employer has not been able to tilt the balance in its favour and therefore justify the imposition of random alcohol testing as a proportionate response to a demonstrated incremental risk caused by the attendance of employees at work with alcohol in their bodies. I therefore find that the random alcohol testing provisions of the Policy do not meet the KVP reasonableness test, and for that reason are unenforceable. That portion of the Policy therefore must be, and hereby is set aside.
What this means is that the arbitral jurisprudence—that random alcohol testing without cause is an unacceptable breach of employee privacy—continues to hold sway in unionized workplaces. While this will likely be unpopular among some audiences, it seems sensible to me that we wouldn’t give employers unfettered search-and-seizure powers that we don’t accord to more trustworthy groups, such as the police.
This decision will be of significant interest in Alberta, where CEP is currently challenging a Suncor effort to impose random drug testing upon employees in similar circumstances. An injunction has prevented Suncor from going ahead unilaterally and the grievance hearing into this matter is, I believe, still going on.
My guess is that, unless Suncor is able to establish that there is a pressing safety issue that can be effectively addressed through random drug testing, it is likely to face an uphill battle in arbitration.
The scuttlebutt is that Suncor will have difficulty proving a pressing safety issue among the employees in CEP’s bargaining unit. The inability of drug tests to measure impairment and the absence of evidence that random testing is associated with reduced injuries suggests that safety gains from testing will be elusive.
Set against the fundamental invasion of employee privacy and the indignity that accompanies drug testing, these facts suggest CEP may win this arbitration.
-- Bob Barnetson