Canadian Occupational Safety

14 Canadian Occupational Safety www.cos-mag.com COMPENSATION WATCH LEGAL CONNECTION TRAINING BY LORETTA BOUWMEESTER AND CHERYL EDWARDS T he Supreme Court of Canada (SCC) has weighed in on random alcohol testing in unionized workplaces. At fi rst glance, it may look as though the result is that, irrespective of employer concerns about the need to engage in testing to ensure safety in the workplace, random testing may be down for the count. A closer look shows, however, that it may be down — but it is not out cold. e ring in which this match was fought was a labour one. If one month equaled a round, this one went seven. In a split six to three decision, the SCC decided that privacy wins — this time. "Privacy" was the boxer in the black shorts, the union favourite. Wearing high-visibility white shorts was "safety," the management favourite. Odds were seven to four that safety would win. Safety had a great track record with multiple knockouts. Privacy's record was solid, but safety was bigger, stron- ger and ready to rumble, as the stakes were high. If safety broke down due to impairment in the workplace, people could die or be seriously injured. Property could be damaged and the environment harmed. If privacy lost, the integrity of the person could be damaged — fundamentally important, no doubt, but not potentially fatal. Safety came out swinging with the fact its home turf was a workplace: the Irving Pulp and Paper Plant, near a large body of water, in an undisput- edly dangerous workplace. Privacy had an advantage, though. Safety under- estimated the evidence it would need to show that random alcohol testing was needed in the workplace, thinking that its record of eight alcohol related incidents in 15 years spoke for itself. Its workplace being "inherently danger- ous" was thought to be enough. In fact, in the last fi ght with the New Brunswick Court of Appeal acting as the referees, it had been enough. Ultimately, the SCC ring proved bigger, and the referees tougher. Following arbitral decisions rather than accepting the analysis approved by the New Brunswick Court of Appeal, the SCC made call a er call on privacy's side. Safety wore out. Being a danger- ous workplace was not enough. Safety couldn't land any solid punches that showed there was a pre-existing prob- lem in the workplace to justify random alcohol testing. Strength fading — with no expert evidence on the deterrent eff ect of random testing to prop safety up for a much needed second wind — safety was le fractured and bleeding in the ring. Most of the spectators le feeling defeated. ey wondered if the out- come would have been diff erent if safety had fought in a non-unionized ring. ey also wondered if the loss of this fi ght would slow safety down in its quest to wipe out drug and alcohol related impairment in the workplace. The SCC majority decided the expected safety gains to the employer ranged from "uncertain to minimal," and the impact on employee privacy was "severe." So privacy prevailed over safety — this time. Following this decision, it will likely be harder to establish random alcohol (or drug) testing as necessary to achieve a safe workplace, and protect workers, the public and the environment. Unfor- tunately, this decision is also likely to result in more, rather than fewer, rounds in the ring. However, as the SCC held, "...[it] is not to say that an employer can never impose random testing in a dangerous workplace. If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justifi ed." UNION VERSUS NON-UNION e SCC determined the issue in this case was whether Irving's unilateral imposition of random alcohol testing for employees, in safety-sensitive posi- tions, was a valid exercise of Irving's management rights under the collec- tive agreement. e court applied the "KVP test," which sets out that a rule or policy with disciplinary conse- quences, unilaterally imposed by an employer, must not only be consistent with the collective agreement, but must also be reasonable. Finding no general problem of abuse in the Irving workplace, the court found the random alcohol testing policy, even when limited to safety-sensitive posi- tions, to be unreasonable. at test is diff erent than the one in a non-union context, which comes out of the "Entrop" case. While the SCC worked hard to keep its analysis restricted to the context of the union- ized workplace, the general principles from this case are also applicable in the non-union context, in that any breach of employee privacy must be reasonable in the circumstances. As the SCC stated in its decision, "... even in a non-unionized workplace, an employer must justify the intrusion on privacy resulting from random testing by reference to the particular risks in a particular workplace. ere are dif- ferent analytic steps involved, but both essentially require attentive consider- ation and balancing of the safety and privacy interests." If Irving Pulp and Paper had negoti- ated with the union during bargaining, and the result was that random testing was incorporated into the collective agreement, there would have been no grievance and no fi ght. However, given this decision, it is highly unlikely that many unions will agree to random drug or alcohol testing being incorporated into collective agreements. PRE-EXISTING PROBLEM e SCC le open the possibility that reasonable cause for random testing (drug or alcohol) could be established by factors other than evidence of a problem in the workplace, such as proof random testing has a deterrent eff ect, or that there is a problem generally in the community that is likely to aff ect the workplace at issue. Getting the proof is something the Drug and Alcohol Risk Reduction Pilot Project is working dili- gently on in Alberta's oil sands. Even though this is a labour decision, having evidence of an existing problem will be of great benefi t in both union- ized and non-unionized contexts. We encourage employers to work with their unions to address this serious issue. It should not be a "fi ght," handy analogy or not. Both employers and unions have a vested interest in safety. Where a union does not assist in this regard, working with local police, civic authorities and other community resources, in addition to carefully chronicling your organiza- tion's own experience, can go a long way in getting the evidence to show there is problem that needs to be addressed, and that in the balancing of interests, safety should prevail. SUPERVISOR EFFECT e SCC also appears to be sending the message that an employer cannot simply rely on the "piss truck" — as alcohol testing facilities are known colloquially in the workplace — to address impairment in the workplace. Supervisors who are well trained to recognize signs of impairment (what- ever the cause) have been proven time and again to be a very eff ective means of addressing impairment and increas- ing safety. Unobservant supervisors are potentially an employer's greatest weakness. It is an unfortunate fact that some- times supervisors or working foremen identify more with those they supervise than the organization they work for and, in an eff ort to "protect" workers from disciplinary action, look the other way. Random testing takes this element away. Enacting a "medical" model that does not result in automatic disciplin- ary action also mitigates the risk of a supervisor looking the other way out of misguided compassion. An eff ective employee assistance program also goes a long way, as does a comprehensive privacy policy that eff ectively and meaningfully protects employee privacy interests. With these elements in place it is also far more likely a random drug and/or alcohol policy will pass scrutiny, and be seen by workers to be more reasonable. Just as any fi ght in the ring depends on the strength of the boxers, the legal- ity of random testing continues to depend on the circumstances of the particular case. e next key fi ght will likely be in the Alberta oil sands. Suncor's arbitration hearing, with respect to random drug and alcohol testing, is ongoing. Hearing dates are scheduled through to the fall of 2013. is battle could also play out in British Columbia where Teck Mining is proceeding with random drug and alco- hol testing, given that a union-requested injunction was not granted pending the outcome of the grievance arbitration. So, stay tuned — there is sure to be another "rumble" or two coming to a workplace near you. Continued debate about the testing of employees in dan- gerous and safety-sensitive workplaces, where there are indications of a prob- lem, is well worth it to achieve safer workplaces. Loretta Bouwmeester is a partner in Heenan Blaikie's Calgary offi ce and a member of the fi rm's national OHS and Workers' Compensation Practice Group. She can be contacted through e-mail at lbouwmeester@heenan.ca Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and leads Heenan Blaikie's national OHS and Workers' Compensation Practice Group. She can be contacted through e-mail at cedwards@heenan.ca. Employee privacy knocks out safety in Supreme Court of Canada fi ght But debate on random testing is far from over

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