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By Peter Menyasz
A recent arbitration ruling in British Columbia against a random drug-and-alcohol testing program adopted by Teck Coal Ltd. confirms the unsettled state of Canadian law on such programs, employment lawyer Lorelle Binnion said March 19.
The arbitrator’s 124-page decision found that random testing wasn’t a reasonable exercise of the employer’s management rights because there was no “general” problem with drug and alcohol abuse sufficient to justify it, Binnion, an associate in the Calgary office of Borden Ladner Gervais LLP, told Bloomberg Law.
Under the Supreme Court of Canada's 2013 ruling in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. , Canadian courts must apply a “very strict test” to random drug testing, requiring both a strong reason for testing and for employees to be in safety-sensitive jobs, according to George Waggott, a partner in the Toronto office of McMillan. The 6-3 decision in Irving restored an arbitration ruling that found unreasonable the company's annual mandatory alcohol testing of about 10 percent of employees in safety-sensitive jobs. The arbitrator found random testing offered too small a potential benefit in increased safety relative to the significant loss of individual privacy.
Although the arbitrator in this case reached a conclusion similar to the Supreme Court's in Irving, he rejected the union’s argument that the test established in the Irving case is binding, because the court was only reviewing an arbitration decision in a specific case to determine if it was within a range of reasonable outcomes, Binnion said.
The result, according to Binnion, is a situation in which “the circumstances under which random drug-and-alcohol testing can be justified could remain ambiguous for some time.”
“This decision suggests,” Binnion said, “that from a practical standpoint, it will be very difficult—if not impossible—for employers to justify random drug-and-alcohol testing policies.”
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For more information on British Columbian HR law and regulation, see the British Columbia primer.
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