COLUMN: Can employers force a breathalyzer on employees?

Imagine you’re hard at work when, out of nowhere, you’re tapped on the shoulder and told that it’s time for you to take a breathalyser.

  • Aug. 2, 2013 7:00 p.m.

Imagine you’re hard at work when, out of nowhere, you’re tapped on the shoulder and told that it’s time for you to take a breathalyser.

You recall that your union did not agree to this in your recent collective agreement, and you’re left wondering to yourself “Can they really make me do this?”

The answer to that question is – as is often the case in the legal world – it depends!

The Supreme Court of Canada recently considered the extent of an employer’s right to unilaterally implement workplace policies in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd, 2013 SCC 34.

In that case, the union challenged an employer’s ability to implement a mandatory drug testing policy.

Under that policy, 10 per cent of employees in safety sensitive positions would be required to undergo unannounced breathalyser testing throughout the course of a year – a positive test resulted in disciplinary action.

The court relied on the well-established principle that an employer may only impose a rule with disciplinary consequences when the need for the rule outweighs the harmful impact on an employee’s privacy rights.  This principle essentially amounts to a balancing act on the part of the courts. Applied to the Irving decision, the court ultimately held that the invasion of privacy was too great to allow the employer to compel its employees to undergo breathalyser testing.

However, the court explicitly stated that under different circumstances, an employer may very well have the right to do just that. In particular, the court noted that when a workplace is dangerous, an employer would have the right to implement a mandatory drug testing policy if there is reasonable cause to believe that a specific employee was impaired while on duty, or if the employee had a history of accidents or substance abuse.

Unless a collective agreement specifically allows for a certain policy or rule, it isn’t always clear to what extent an employer can unilaterally impose them.  The courts will assess these situations on a case by case basis.

If you find yourself asking “Can they make me do this?” it will often be in your best interest to contact your local labour or employment lawyer.

Doug is a partner with RDM Lawyers LLP. He practices in the areas of labour and employment law and personal injury law.  Comments about this article can be sent to legalease@abbynews.com.