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No Pint Of Beer At Lunch For You!

According a recent article by Randy Shore, published in the Vancouver Sun, the Insurance Corporation of British Columbia (ICBC) has implemented a policy banning consumption of alcohol by employees during the work day. Unfortunately for ICBC, its work day includes a lunch period for which employees are not paid.
The employees’ union, the Canadian Office and Professional Employees (COPE), has already voiced its opposition to this policy. COPE’s position is, in effect, that the employer is overreaching by attempting to regulate employees’ conduct during periods for which they are not paid.
According to Shore’s article, ICBC’s new policy “specifically prohibits employees from drinking on their lunch hours”. The article quoted an ICBC representative as saying, “We take the position that any amount of alcohol will not improve an employee’s judgment.” 
That’s an interesting, and perhaps poorly expressed, perspective. There are many other activities employees engage in which won’t improve their judgment - I wonder if ICBC is planning on banning those, too. 
Should there be a grievance and a resulting arbitration hearing over this policy, ICBC may find itself in a delicate position. Surely, in order to convince an arbitrator that such a far-reaching policy is necessary, ICBC must advance the position that it has a widespread problem with employees being impaired on the job.
However, admitting in a public forum that it has a widespread problem with employees showing up impaired for work is something that ICBC (like any employer) surely won’t want to do. The result is something of a “catch 22” for ICBC.
It’s likely that ICBC will also advance the position that, due to its role as the primary auto insurer in B.C., part of its mandate is to discourage alcohol consumption and that its own operations are the best place to set that example. Just as a company promoting environmental sustainability may not want its employees chugging to and from work in a Hummer, ICBC may feel that its role is to discourage drinking and driving.
But therein lies the catch – the policy (apparently) doesn’t focus solely on employees consuming alcohol and then operating a motor vehicle. It is the blanket effect of the policy which may be its downfall. As admirable as ICBC’s intentions may be, the policy seems on its face to overreach in its application.
Obviously, consuming alcohol at work is inappropriate as is showing up at work in an impaired state. But if an employee consumes a pint of beer during lunch hour, and is not in an impaired state as a result, what right does his or her employer have to restrict that conduct?
I think ICBC will find that arbitrators in this province view the attempted regulation of employees’ non-work conduct with skepticism. That means ICBC has an uphill battle in convincing an arbitrator that this policy is reasonably required.
To be sure, there are some circumstances in which regulation of off-duty conduct is warranted. If the employee’s conduct brings the employer’s business into disrepute or in some manner (directly or indirectly) affects the employee’s ability to do a job, then the incursion into his or her private life may be deemed warranted. 
The range of scenarios in which this is likely to be the case, however, is limited. My own guess, not knowing anything more about the situation than what has been published in the Vancouver Sun, is that ICBC’s isn’t one of them.
Robert Smithson is a lawyer in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, or to view past “Legal Ease” columns, log onto