In November 2024, the Federal Court of Appeal upheld the constitutional validity of mandatory pre-placement and random alcohol and drug testing requirements for safety-critical positions at Class I nuclear facilities. Subsequently, several Canadian legal experts have raised concerns regarding reduced privacy rights pertaining to alcohol and drug testing for safety-critical workers.
“Random alcohol and drug testing imposed on all employees in a dangerous workplace is generally rejected for being unreasonable, however, when it applies to a subset of only safety-critical workers, it is less likely to be scrutinized. In this particular case, the safety-critical workers represented less than 10% of the nuclear industry’s entire workforce, and was not imposed on workers outside safety-critical roles,” states a recent analysis on the topic published by the law firm MLT Aikins.
The Court’s decision in Power Workers’ Union et al v. Attorney General of Canada ruled that mandatory “pre-placement” and random alcohol and drug testing requirements are crucial for ensuring safety in Class I nuclear facilities due to the potentially disastrous consequences of impairment on the job.
A total of six affected workers and their union claimed that such 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.
In addition, they claimed the licence requirement was unreasonable on administrative law grounds, resulting in a judicial review; however, the judge dismissed their applications on all grounds. As part of its ruling, the Court dismissed challenges to the Canadian Charter of Rights and Freedoms under sections 7, 8, and 15. It also determined that testing requirements were reasonable, and noted their focus on safety and treatment rather than punishment of workers. Furthermore, the decision also suggested that workers in safety-sensitive roles have a reduced expectation of privacy due to the importance of public and environmental safety in the nuclear sector. The court also determined that the approach by the Canadian Nuclear Safety Commission (CNSC) was within its statutory authority.
“This ruling represents a significant development in Canadian workplace safety law, particularly for employers operating in highly regulated, safety-sensitive industries. It demonstrates the Court’s willingness to find a diminished privacy right in highly safety-sensitive contexts and, in so doing, to support reasonable safety measures while ensuring appropriate protections for worker rights,” reads another analysis article published by the Toronto law firm Hicks Morley.
