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Supreme Court of Canada to Consider Random Alcohol Testing in the Workplace

The Supreme Court of Canada has granted the union leave to appeal a case in which the New Brunswick Court of Appeal decided that an employer can conduct random alcohol testing of employees in safety sensitive positions in an inherently dangerous workplace, without having to show a pre-existing alcohol problem. This is the first case in which the Supreme Court of Canada will directly address alcohol testing in the workplace. An employee, who refrains from drinking for religious reasons, filed a grievance after being randomly selected for alcohol testing. According to the arbitration board’s balancing of interests approach, the employer was required to provide evidence of alcohol problems in the workplace or show that the workplace was “ultra dangerous”. Because neither was established, the grievance was upheld. The New Brunswick Court of Queen’s Bench then overturned the decision, rejecting the “ultra dangerous” requirement (finding that “dangerous is dangerous”), and holding that the potential for a catastrophic accident justified the employer’s alcohol testing policy. The Court of Appeal upheld this decision.

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