Canada: Drug And Alcohol Testing: Safety vs. Privacy – Safety Wins For Now
Random alcohol and drug testing causes irreparable harm to privacy interests, but not allowing it creates a risk of even greater irreparable harm to safety. That was the decision reached by an Arbitrator who was asked by a union to make an interim order to prevent the employer from implementing its new testing policy. (The decision is Teck Coal Limited, Unreported Arbitration Award, May 9, 2013 (Taylor)).
This is NOT a finding that random alcohol and drug testing is allowed. That is still very much in dispute and this decision was on the narrow issue of whether the employer should be prevented from implementing its policy until the union’s grievance is decided. But the decision does highlight the possibility that the right type of evidence in the right type of workplace may allow for random testing.
As noted in a previous post, the Supreme Court of Canada has recently ruled against a random alcohol testing policy at Irving Oil. But as the Teck case shows, it is all about balancing privacy and safety interests in each particular workplace; it cannot be said simply that random testing is not allowed.
Teck is confident it has the evidence to show the effect of drug use on safety in its workplace, and it believes it has cogent new expert evidence to show the efficacy of testing in improving safety. It hopes to get all that before the Arbitrator to justify its new testing policy.
We will watch the case with interest. In the meantime, the union is appealing the interim decision. The BC Court of Appeal last week refused to hear their appeal, so the matter is now going to the Labour Relations Board.
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Mr Christopher McHardy
McCarthy Tétrault LLP
Toronto Dominion Bank Tower