October 18th, 2018
With legalization of recreational cannabis in Canada and the increased use of medical cannabis, many recreational and medical users may wonder if they can be subjected to testing for cannabis usage. Random drug and alcohol testing in the workplace has been a contentious issue in Canada. This issue was dealt with by the Supreme Court of Canada in a landmark decision, Irving Pulp.1 In the Irving Pulp case the Court considered random alcohol testing and to the balancing of the interests of an employer seeking to ensure workplace safety and the privacy interests of employees not to be subjected to invasive testing in a unionized work. Although in this case the company was testing for alcohol only, the principles from this decision are applicable to randomized drug testing as well.
This case arose after the union brought a grievance challenging a mandatory random alcohol testing policy that had been unilaterally implemented by the employer. The policy allowed the employer to randomly select 10% of all employees working in safety sensitive work areas to be tested each year. Any employee who tested positive for alcohol would be subject to disciplinary action.
In a 6-3 decision, the Supreme Court allowed the grievance, with the majority deciding that random alcohol testing was not appropriate in the workplace without sufficient cause. The Court specifically noted that there was a lack of evidence to support that there was an alcohol abuse problem in the workplace to justify the unilateral introduction of a random testing policy. Ultimately, the safety interests were not sufficient to outweigh the employees’ privacy rights.
Following the decision in Irving Pulp, employers in unionized work environments must satisfy the following factors before implementing a random testing regime in a unionized workplace:
- the workplace must be dangerous;
- there must be evidence of substance abuse problems in the workplace;
- other methods to deter substance abuse have failed; and,
- testing must assess current impairment.
The takeaway from the Irving Pulp decision is that in the absence of evidence of a workplace drug or alcohol problem, an employer’s random testing policy will likely be unenforceable. However, there is uncertainty as to what constitutes an “alcohol abuse problem” – or what might constitute a “cannabis abuse problem” – and therefore employers must consider carefully whether there is any evidence and whether it will be sufficient to establish that there is a problem in order to uphold any random drug and alcohol testing regime.
At Lerners LLP, we have experience advising both employers and employees with respect to the testing for substance use in the workplace. We would be happy to advise you on those issues.
1Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34,  2 S.C.R. 458.