A move by the Toronto Transit Commission to randomly perform drug and alcohol tests on not just operators but also office employees may be fraught with legal challenges, says Toronto employment lawyer Doug MacLeod.
MacLeod, principal at the MacLeod Law Firm, says that while the TTC’s frustration is apparent by moving unilaterally without union support, they could very well be on shaky legal ground.
According to media reports, the TTC sent letters to some 12,000 employees in April saying all employees would be tested. Of those, about 5,000 are operators, driving buses, subway trains and streetcars and another 5,000 are maintenance workers, often in bus depots and LRT and subway yards which represents some industrial accident risk.
The move is aimed at the operators, however, and TTC General Manager Andy Byford noted in the letter and in the media, that since a 2011 bus crash in which the driver was found in possession of pot but not found to be impaired, discussions with the union around a sanctioned testing program had stalled indefinitely.
He stressed the tests would determine if an employee was impaired while on the job and was not a fishing expedition to find out what they did on their time off.
The Amalgamated Transit Union (ATU Local 113) has already said they will fight the testing through arbitration and court as needed, calling it a violation of their collective agreement, media reports say.
MacLeod says there are two recent decisions of note that demonstrate the high evidentiary burden an employer must satisfy to justify random drug tests on employees.
In a 2013 Supreme Court of Canada case involving Irving Pulp and Paper, the court set out the balance between workplace safety and violating people’s privacy, MacLeod tells AdvocateDaily.com.
In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. 2013 SCC 34, the court struck down Irving’s attempts to introduce random testing.
It came on the heels of a 2006 Ontario decision involving Imperial Oil which had introduced random drug and alcohol testing at its refinery in 1992. The union fought the policy through an Ontario Human Rights Code challenge, with the tribunal upholding Imperial Oil’s right to test.
At the Ontario Court of Appeal, Imperial Oil Limited v. Communications, Energy & Paperworkers Union of Canada, Local 900, 2009 ONCA 420, however, the court held that since the tests only detected past usage and not impairment, they were not permissible.
The SCC 2013 decision struck down random alcohol and drug testing unless there was a bona fide proof of need. The test has four steps, he said.
“One, the workplace must be recognized as dangerous, so someone inputting data or sitting at a screen isn’t really at risk and random drug testing will be difficult to justify,” he said. “Two, it’s important to have evidence of substance abuse. You can’t just say, if a person in this position is impaired it may put others at risk; you need to show there is a history of problems with people in the position being impaired on the job.”
The third test requires demonstrating that other measures of detecting substance abuse have failed, and the fourth and final hurdle is being able to prove impairment and not just detect past useage.
“While alcohol testing for impairment is well established, it’s not so with marijuana tests which only detect past use, not the level of impairment, if any,” he says. “Some studies have concluded that people are impaired for about four hours after marijuana use; a person may test positive but she won’t necessarily be impaired.”
MacLeod fully expects the TTC policy to be challenged.
“It was reported that there were 15 positive tests on a random trial which included those who refused to blow,” he says. “Just because an employee refused to blow does not mean she was impaired. It could be the employee was following their union’s instructions.”
“They’re really in for an uphill battle,” MacLeod says. “It’s the same for almost every employer trying to bring in random drug and alcohol testing.”
With the federal government working to decriminalize marijuana and the rise in medical marijuana usage, it’s an issue all employers must come to terms with until there is technology in the market which can accurately determine impairment, he says.
“If people smoke marijuana at night for pain, by morning they are not generally impaired,” MacLeod says.