The Federal Court of Appeal recently issued a decision signaling that employees working in safety-critical roles have a "diminished expectation of privacy" in regard to random alcohol and drug testing. Given the unique environment of a safety-critical worker's job, including the highly regulated nature of their work and the public interest in ensuring safety, the diminished expectation of privacy may be justified in certain circumstances.
Background information - "pre-placement" and random alcohol and drug testing
In Power Workers' Union v Canada (Attorney General), 2024 FCA 182 the Court of Appeal reviewed the validity of "pre-placement" and random alcohol and drug testing, which the Canadian Nuclear Safety Commission (the "Commission") wanted to impose as a licence condition for those licensed to operate high security nuclear facilities. Safety-critical workers include employees who make decisions or take actions that have a direct and immediate impact on nuclear safety.
Six affected workers and their union claimed that pre-placement and random alcohol and drug testing breached their rights under the Canadian Charter of Rights and Freedoms, including: section 7 which is the right to life, liberty and security of the person; section 8 which includes the right to be secure against unreasonable search and seizure; and the right to equality under section 15.
Alternatively, they claimed the licence requirement was unreasonable on administrative law grounds. The workers brought applications for judicial review, which the application judge dismissed on all grounds.
The...
