Random alcohol testing policy upheld by Court of Appeal

‘Inherently dangerous’ working conditions justify invasive procedure
|labour-reporter.com|Last Updated: 07/11/2011

A grievance filed by an employee against his employer’s random alcohol testing policy has been dismissed by the Court of Appeal of New Brunswick.

In February 2006, Irving Pulp & Paper Inc., a kraft paper mill, adopted a mandatory and random alcohol testing policy for its 334 employees holding safety sensitive positions. In any 12-month period, a computer selects 10 per cent of the names on the list for the breathalyzer test. After selection, names are not removed from the list so that the policy continues to be a deterrent for all employees.

In March 2006, an employee, who does not consume alcohol for religious reasons, was selected for the random test. He submitted to the test because of the disciplinary measures prescribed under the policy and it returned with a zero per cent result.

The employee filed a policy grievance, which was initially upheld by the arbitration board in 2008, but dismissed upon the application for judicial review.

Last week, the Court of Appeal of New Brunswick upheld the dismissal of the grievance.

The court ruled that Irving’s policy was valid because the workplace is “inherently dangerous” since employees load and unload dangerous chemicals as part of their daily activities. The plant also houses a pressure boiler that has “high potential” for explosion that could lead to catastrophic damage in the surrounding community.

Taking this into consideration, the company does not require evidence of an existing alcohol problem before implementing a random alcohol testing policy.

The Court did not rule on the validity of a drug-testing policy, which is more intrusive and does not necessarily indicate present impairment, according to court documents.

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