Following a decade of research and consultation, the Canadian Nuclear Safety Commission finally published its long awaited Regulatory Document or REGDOC-2.2.4, Fitness for Duty, Volume II: Managing Alcohol and Drug Use Version 3 (the Regulations) in January 2021. However, while hoped by many to signal a new era in alcohol and drug testing standards in safety-sensitive workplaces, the Regulations remain only partially implemented, with pre-placement and random testing on hold pending the outcome of a judicial review challenge.
Challenge to the Regulations
Under the Regulations, employers in the nuclear sector are required to implement alcohol and drug testing policies which meet certain minimum requirements. Many of these requirements are relatively uncontroversial in the safety-sensitive work environment, including reasonable cause testing and post-incident testing. However, the requirement for employers to (a) randomly test 25% of their safety critical and safety-sensitive workforce each year, and (b) undertake pre-placement alcohol and drug testing, were met with fierce resistance from the unions representing affected workers from the outset.
This reaction was not unanticipated; the unions had made clear their stance on random and pre-placement testing throughout the decade-long consultation process, arguing that there was no justification for the infringement of employees’ privacy rights in this manner where there is no evidence of an alcohol and/or drug abuse issue in the workplace, per the seminal Supreme Court of Canada case of Irving Pulp1. It was therefore not surprising that grievances were filed almost immediately upon the publication of the employers’ new alcohol and drug testing policy in early 2021.
Following the filing of the grievances, a Notice of Constitutional Question was served on the Attorney General of Canada (AGC) challenging the Regulations on the basis of sections 7, 8 and 15 of the Canadian Charter of Rights and Freedoms, namely the right to life, liberty and security of the person, the right to be secure against unreasonable search or seizure, and the right to equality. As a result, the AGC requested and was permitted to participate in the arbitration of the grievances.
However, having considered the nature of the grievance, the arbitrator determined that he did not have jurisdiction to hear the grievance, or to award interim relief, as it was, in effect, a constitutional challenge to the Regulations rather than an allegation of a violation of the Collective Agreement(s). The arbitrator did, however, seize jurisdiction over the elements of the grievance concerning provisions of the Policy, which went beyond the requirements of the Regulations, and imposed a stay in relation to those, pending final determination.
The unions subsequently, on March 6, 2021, filed for judicial review of the Regulations. As the new requirements for pre-placement and random testing were scheduled to take effect from January 22, 2022, the unions applied for a stay, with the motion heard by the Federal Court on January 21, 2022. The Court determined that a stay should be implemented pending the judicial review.
The judicial review proceedings are currently scheduled to take place in the Federal Court in early December 2022.
Employers in other safety-sensitive workplaces should keep an eye on the outcome of this case as it is likely to provide further guidance on permitted alcohol and drug testing.
Courts have frequently pointed to the legislature as being the proper place to include requirements around alcohol and drug testing. This is the first attempt to accomplish this. Given that the nuclear industry is one of the most safety-sensitive industries, if random and pre-placement testing is not permitted as a purely preventative measure through legislative means, it would likely stop other similar legislation from being introduced in the context of other safety-sensitive environments. It would further solidify the test in Irving Pulp as being applicable, regardless of the potential risks and safety implications, and make it extremely difficult for random or pre-placement testing (in some jurisdictions) to be upheld without evidence of a problem in the workplace.2
We recommend that employers considering the implementation of these types of measures seek legal advice before doing so. Please reach out to a local member of Dentons Canada’s Employment and Labour group for guidance regarding alcohol and drug testing in the workplace, or for any other employment matters.
1 Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34,  2 SCR 458.
2 Please note that pre-employment and pre-access testing has been upheld in prior Alberta decisions.