Privacy in the Workplace - Drug & Alcohol Testing

Jill W. Wilkie, Calgary

Labour and Employment Communiqué
Privacy in the Workplace – Drug & Alcohol Testing
Jill W. Wilkie
Associate

This fall, the Alberta Labour and Employment Group of Miller Thomson LLP had the pleasure of welcoming Frank Work, Q.C., in his final weeks as the Information and Privacy Commissioner for Alberta. Mr. Work co-presented in Calgary with the co-chairs of the Alberta Labour and Employment Group, Tom Duke and Loretta Bouwmeester, on the topic of drug & alcohol testing.

Mr. Work provided the reminder that any time an employer performs drug and alcohol testing on an employee, the employer is collecting personal information. All privacy legislation governs the collection, use and disclosure of personal information. The question that employers must ask is whether the information should be collected in the first place. When an employer collects information through testing of a hair, blood, urine or saliva sample, the employer could collect information that the employer does not require, such as whether the employee is pregnant or has a communicable disease, among other things. Mr. Work recommended that the best way to avoid a privacy complaint is not to collect more information than an employer needs, and has a good reason to collect, in the first place.

By way of summary, Mr. Work noted that drug and alcohol testing is currently permitted where: (a) an employer has reasonable cause to suspect that there is drug and/or alcohol use in the workplace, (b) after a workplace incident, and (c) upon return to work after a positive test result and/or rehabilitation, should a disability exist. Mr. Work noted that there must be a reasonable degree of risk, and proper consents must be in place, before any drug or alcohol testing occurs.

Ms. Bouwmeester and Mr. Duke provided a case law update summarizing current trends in drug and alcohol testing decisions. Of note was the New Brunswick Court of Appeal’s decision in Irving Pulp & Paper Ltd. v. Communications Energy and Paperworkers Union of Canada, Local 30, 2011 NBCA 58. Irving had brought an application for judicial review of a Labour Arbitration Board decision that allowed an employee’s grievance regarding random alcohol testing. Irving took the position that its workplace was dangerous and it was therefore reasonable for Irving to have a policy that allowed Irving to conduct random alcohol testing on employees who held safety sensitive positions.

The Court of Queen’s Bench agreed with Irving and found that its workplace was inherently dangerous, that the policy was minimally intrusive and that, in the circumstances, testing was a reasonable intrusion on the privacy interests of the employees. The Court concluded that it is not reasonable to require an employer to provide a history of accidents or alcohol abuse in a dangerous workplace where the potential for catastrophe exists in order to justify a policy that includes random alcohol testing. The Court of Appeal upheld the Court of Queen’s Bench decision. The Court of Appeal found that once a workplace is declared “inherently dangerous”, there is no need for the employer to establish the existence of an alcohol problem in the workplace for mandatory alcohol testing to be justified.

In endorsing random alcohol testing, the Court of Appeal helpfully stated the following:
Not only is the object and effect of such a testing policy to protect the interests of those workers whose performance may be impaired by alcohol, but also the safety interests of their co-workers and the greater public. Potential damage to the employer’s property and that of the public and the environment adds a further dimension to the problem and the justification for random testing.

This case is important for two reasons. First, it is a higher court decision other than an Alberta one, which recognizes the potential damage to the environment and the impacts on safety that impairment in the workplace represents. Secondly, decisions in the labour context are high water mark decisions. If random testing is allowed in this context, it will be permissible in the non-labour context.

The Court of Appeal did not endorse random drug testing. The concern being that existing testing technologies cannot reliably indicate current impairment.

In conclusion, Mr. Work observed that employers are becoming very powerful people in employees’ lives. Mr. Work stated that the age of “I own you from 9 am to 5 pm” is over. Employers also cannot control their employees. Employers are becoming increasingly involved in their employees’ lives, largely due to the affordability and amount of technology available. Location services may be present on employer issued Blackberries, employer owned vehicles may have GPS, surveillance technology is more affordable and readily available, drug and alcohol testing is becoming more advanced and social media provides employers with more information than they have ever had before. However, with this great power comes great responsibility. Mr. Work recommended that employers embark upon the collection of personal information intelligently, supported by a well drafted privacy policy, that employers be upfront with their employees and that employers be reasonable about what they are collecting. Mr. Work concluded the presentation with a cautionary note to employers: if an employer puts its employees under a microscope, the Information and Privacy Commissioner will put the employer under a microscope.

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Dernières nouvelles

The Alberta Labour and Employment Group will be hosting half day seminars in both Calgary and Edmonton. Seminars will take place on May 15 in Calgary and May 16 in Edmonton. Stay tuned for more details on these seminars.

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