The recent decision of Irving Pulp & Paper, Limited v. Communications, Energy and Paperworkers Union of Canada, Local 30, 2011 NBCA 58, by the New Brunswick Court of Appeal has upheld random alcohol testing where the workplace is determined to be “inherently dangerous” and the method of testing is minimally intrusive. In this case, a grievance was brought by a 34-year-old millwright in the maintenance department of a pulp and paper mill. He was randomly selected for an immediate breathalyser test. The employer’s policy on drug and alcohol use stated: “Employees involved in safety sensitive positions will be subjected to unannounced random tests for alcohol.”
Although the employee passed the test, he challenged the policy. His union alleged there were no reasonable grounds to test because there had been no accident or incident that would justify such test. The court ruled that breathalyser testing was minimally intrusive. The policy only applied to a limited number of employees in legitimately safety sensitive positions. As a result, the policy was not out of proportion to the actual and expected benefit. The policy was justified in the circumstances. This decision is important for employers. It confirms the employer’s right to implement random alcohol testing for safety sensitive positions in an inherently dangerous workplace. It must be noted, however, that this ruling would not necessarily extend to drug testing.