Drug testing policies in the wake of Irving – Addressing legitimate safety concerns

Alcohol and drug abuse at the workplace can lead to significant health and safety incidents, particularly in dangerous work environments. To minimize the likelihood of these incidents, employers may choose to adopt alcohol and drug testing policies for their employees in safety-sensitive positions. However, employees and unions continue to challenge these policies on the basis of employee privacy concerns. Recent decisions by Canadian courts and arbitration boards showcase how employers can demonstrate a legitimate need for drug or alcohol testing in their workplace.

Workplace safety and privacy issues came to a head when the Supreme Court of Canada, in its landmark ruling in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited (Irving), held that employers in a unionized workplace must lead evidence of a general workplace drug or alcohol problem in order to justify random drug and alcohol testing policies.

Since Irving, Canadian courts and arbitration boards have been divided on the enforceability of random drug and alcohol testing policies. The most recent decision, Suncor Energy Inc. v. Unifor Local 707A (Suncor Energy), highlights the evidentiary burden an employer must meet in order to justify a universal random drug and alcohol testing policy. The Alberta Court of Queen's Bench in Suncor Energy found that an employer must demonstrate: (i) that it has a dangerous workplace; and (ii) that there is a general problem with drug or alcohol abuse in that workplace.

To read the full article authored by the Employment and Labour Practice Group please visit osler.com.

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Editors

Lawrence E. Ritchie

Partner, Litigation

Alexander Cobb

Partner, Litigation

Shawn Irving

Partner, Litigation

Kevin O’Brien

Partner, Litigation

Lauren Tomasich

Partner, Litigation

Malcolm Aboud

Associate, Litigation