Randomized alcohol testing in the workplace rejected by Supreme Court
On Friday, June 14, 2013, the Supreme Court of Canada ruled that the decision made by the New Brunswick Labour Arbitration Board should be upheld and randomized alcohol testing should be removed from Irving Pulp and Paper Ltd. Mill’s policy.
In a 6 to 3 decision, the Supreme Court ruled that the employer did not have a significant issue with alcohol in the workplace and as such the policy was unreasonable. The Supreme Court felt that the risk to employee privacy was substantial, whereas the health and safety concerns argued by Irving were not evident. In rendering it's judgment, the Supreme Court laid the circumstances in which randomized drug testing may be justified:
- Where there are reasonable grounds to believe an employee was impaired while on duty.
- Where an employee was directly involved in a workplace accident or significant incident.
- Where the employee returns to work after treatment for substance abuse.
The case stems from a 2006 policy unilaterally adopted by Irving Pulp and Paper Ltd. in St. Johns, in which employees in 'safety sensitive positions' were required to submit to randomized drug testing. A policy grievance was filed by Local 30 of the Communications, Energy and Paperworkers Union of Canada (CEP). The union argued that requiring employees to submit to random breathalyzer and bodily fluid samples was unreasonable and that testing should only be required when there is reasonable cause and signs of impairment - i.e. smell of alcohol, slurred speech, etc.
Irving argued that the policy was justified given the nature of the work, including exposure to hazardous chemicals, high voltage electricity, rotating equipment, and a high-pressure boiler. The company also submitted that the mill had a history of substance abuse involving alcohol and cited 8 cases between 1991 and 2006 when the policy was implemented.
A New Brunswick arbitration board allowed the grievance on the basis that Irving had not demonstrated a need for the policy. The New Brunswick Court of Appeal dismissed the grievance in 2011, ruling that the hazards of the workplace justified the policy. In overturning Irving's policy, the Supreme court has set the national standard for employers seeking to implement drugs and substance policies in the workplace. The Court awarded "costs throughout" to CEP.
To review how the Supreme Court's ruling may affect your alcohol and substance policies in the workplace, please contact us by email or by telephone at 416-239-7561
Proposed Ontario legislation give employees more time off work
The Wynne government is set to provide more time off work for Ontario workers. Introduced on March 5, 2013, the Liberal government intends that the Employment Standards Amendment Act (Leaves to Help Families), 2013 proposed, would 'build on the existing Family Medical Leave' by providing three new areas in which leaves must be provided to workers in Ontario:
- Family Caregiver Leave, which provides up to 8 weeks of leave for a worker to be absent from work to care and support a family member with a serious illness. An employee's family member is defined as:
- Parent, step-parent or foster parent
- Child, step-child, or foster child of employee
- Grandparent, step-grandparent, grandchild or step-grandchild
- Spouse of their child
- Brother or sister
- Relative who is dependent on the employee for care or assistance
- Critically Ill Child Care Leave provides for up to 37 weeks off work to care for a child who is critically ill; and
- Crime-Related Child Death & Disappearance Leave that provides for 52 weeks of leave for the parents of a missing child and up to 104 weeks of leave where a child has died as a result of a crime.
While the proposed legislation is for "unpaid leave", organizations with sick leave benefits programs and/or short term leave programs will likely have to provide paid leave under those programs to the extent of the available leave. Further, the proposed changes are intended to 'build on' the existing Family Leave provisions, meaning that these new leave entitlements are intended to be in addition to the existing leave requirement.
Similar to the existing Family Leave provisions, employees will continue to earn entitlement and seniority while absent from work. Employers would also be required to maintain their portion of benefits payment while the worker is absent from work.
Finally, note that the legislation is silent on the age of the child as well as the residence of the child or family member and therefore it can almost certainly apply to a child of any age and family members residing outside of Ontario.
For more information on how may be able to assist you with managing workplace absences related to workers' compensation, disability or any of the myriad of leave entitlements, contact us by email or by telephone at 416-239-7561.