Way back in 2006, a pulp and paper mill in New Brunswick put in a policy that required random alcohol tests for any employees in safety critical positions. About 10% of the workforce would get tested per year. The union took exception to this policy, arguing it was a violation of the employees’ privacy and a threat to their dignity. There were various rulings and appeals that took the case to the Supreme Court, and yesterday the Supreme Court ruled that yes, it was a violation of privacy rights.
This is an interesting and complex case for a number of reasons. Those of us on the liability side of things, i.e., those of us who lie awake at night worrying about protecting our clients or our organizations may view this ruling with a queasy stomach. Those of us who believe that our rights as Canadians need to be protected will likely view this ruling as a triumph. Initially, I was horrified at this ruling, but I had only briefly read that the ruling had occurred, it was on a Friday, I just wanted out of the office. I was horrified, and concerned because such policies are in place to protect workers, not to act as Big Brother. Clearly, workers in positions that requires diligence to ensure other workers’ safety should not be drunk or otherwise under the influence. Why would anyone object to alcohol testing in such cases? The key here is that this was random testing; testing that would occur regardless of whether there was any cause for concern. Once I properly read the ruling, I settled down...slightly...
Certainly, this puts the onus on the employer to have stronger policies and a clear procedure for dealing with these sorts of issues. This ruling does not prohibit testing; in fact, it does not even prohibit random
testing as long as the employer can show that there is a just cause for concern.
However, if there is just cause for concern, and employees are at risk from a safety perspective, an employer needs to deal with it. Immediately. Employers do not have the option of analyzing whether or not there is just cause for concern and to worry about violating someone’s privacy. Here is a scenario to consider… an employee shows up drunk one day, the employer deals with it but as it is only one case, there
is not sufficient cause for concern, in the eyes of the law, so no further action is taken. Months or even years go by, and an accident occurs. The employee who has had a history of showing up drunk for work (even though it was only once) is responsible and was under the influence at the time of the accident. Another employee is injured or killed. Now, imagine being the employer trying to explain to the family of the injured or killed employee…yeah, there had been an incident but it was only once, we cannot do random testing, it is a violation of privacy, gee sorry about your loss. Of course this is a radical example, but bottom line, I value life and intact limbs over privacy.
This is an interesting and complex case for a number of reasons. Those of us on the liability side of things, i.e., those of us who lie awake at night worrying about protecting our clients or our organizations may view this ruling with a queasy stomach. Those of us who believe that our rights as Canadians need to be protected will likely view this ruling as a triumph. Initially, I was horrified at this ruling, but I had only briefly read that the ruling had occurred, it was on a Friday, I just wanted out of the office. I was horrified, and concerned because such policies are in place to protect workers, not to act as Big Brother. Clearly, workers in positions that requires diligence to ensure other workers’ safety should not be drunk or otherwise under the influence. Why would anyone object to alcohol testing in such cases? The key here is that this was random testing; testing that would occur regardless of whether there was any cause for concern. Once I properly read the ruling, I settled down...slightly...
Certainly, this puts the onus on the employer to have stronger policies and a clear procedure for dealing with these sorts of issues. This ruling does not prohibit testing; in fact, it does not even prohibit random
testing as long as the employer can show that there is a just cause for concern.
However, if there is just cause for concern, and employees are at risk from a safety perspective, an employer needs to deal with it. Immediately. Employers do not have the option of analyzing whether or not there is just cause for concern and to worry about violating someone’s privacy. Here is a scenario to consider… an employee shows up drunk one day, the employer deals with it but as it is only one case, there
is not sufficient cause for concern, in the eyes of the law, so no further action is taken. Months or even years go by, and an accident occurs. The employee who has had a history of showing up drunk for work (even though it was only once) is responsible and was under the influence at the time of the accident. Another employee is injured or killed. Now, imagine being the employer trying to explain to the family of the injured or killed employee…yeah, there had been an incident but it was only once, we cannot do random testing, it is a violation of privacy, gee sorry about your loss. Of course this is a radical example, but bottom line, I value life and intact limbs over privacy.
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