Michael Ford (post until Oct. 31/19)

Rules on random drug and alcohol testing unclear

Confusion over a recent Alberta labour board decision on random drug and alcohol testing is not surprising, given that tension is bound to exist between an employee’s right to privacy and an employer’s need to maintain a safe work environment, says Toronto employment lawyer Arthur Zeilikman.

The split decision reveals that Canadian companies are unsure on exactly how to apply the Supreme Court of Canada’s new rule on when random drug and alcohol tests can be introduced, reports the Financial Postr />
In the 2-1 decision, the majority held that Suncor Energy Inc.’s plan to introduce random testing at its Wood Buffalo operations was unreasonable because the company misapplied the Supreme Court’s rule, the Post reports, noting the board’s decision came with a strong dissent from a panelist who said Suncor’s actions were correct, and the majority misconstrued and misapplied the test.

The Supreme Court’s test stems from a ruling involving Irving Pulp & Paper Ltd., where employers argued that random tests should be allowed in workplaces that are inherently dangerous, but the Supreme Court said that was too broad, the Post says. The top court ruled employers can only test at random if there is an existing workplace problem with substance abuse.

Zeilikman, of Zeilikman Law Professional Corporationg decision described dangerousness of a workplace as only the beginning of an inquiry.

“To introduce random testing, there has to be a reasonable cause such as ‘evidence of a general problem with substance abuse in the workplace,’” he says. “However, the Supreme Court didn’t provide a satisfactory answer to how much evidence would be sufficient. There’s a tension between the majority decision which, the Alberta board viewed as requiring the demonstration of a ‘significant’ and ‘serious problem,’ and the minority’s view that there should only be ‘some’ evidence of alcohol use to warrant random testing.”

Given the nature of the Irving decision, the split ruling in Alberta is not surprising, says Zeilikman.

“There will always be more work to do with respect to random alcohol and drug testing,” he says. “There is an inherent tension between the employee’s right to privacy and the employer’s right to facilitate a safe work environment.”

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