TTC drug-testing initiative ‘significant’: Anbar

By AdvocateDaily.com Staff

A court decision allowing the Toronto Transit Commission (TTC) to administer random workplace drug and alcohol tests on its employees is a significant development, says Toronto employment lawyer Miriam Anbar.

“This case is an example of safety trumping other concerns or rights. It’s important to note public protection was at play here,” says Anbar, associate with Rodney Employment Law

Associate Chief Justice Frank Marrocco, of the Ontario Superior Court, denied an application by Amalgamated Transit Union Local 113, representing TTC employees, for an injunction to stop the transit agency from introducing random drug and alcohol testing, CBC reports.

The ruling allows the TTC to randomly test 20 per cent of its more than 10,000 employees annually, including vehicle operators, maintenance workers, supervisors, managers and executives, the article says.

The judge said the TTC’s workplace is in effect the City of Toronto, and all people who move about the transit system have a stake in its well-being.

“Employers have an obligation to maintain a healthy and safe workplace and it’s even more heightened in safety-sensitive positions and when the public is at risk,” Anbar tells AdvocateDaily.com.

Public safety was also front and centre in the recent case of a Sunwing Airlines pilot who was sentenced to eight months in jail for showing up inebriated to fly a passenger plane, Anbar says.

A court heard that the pilot was slurring his words, staggering and appeared to pass out as he was preparing to fly passengers to Regina, Winnipeg and Cancun, Mexico, the Toronto Star reports.

Anbar says we are likely to see more workplace issues when Canada legalizes recreational marijuana use in 2018.

Legal cannabis use is now limited to medical patients, she says. “Next year if it becomes recreational, it’s going to be a more complex issue for employers to navigate,” Anbar says.

Although random drug and alcohol testing is legal in Canada, it has been difficult to implement, she says. “The fact that the court is giving the TTC the go-ahead to do that is quite significant. However, employers will still face challenges when attempting to implement random testing policies.”

Before employers consider putting in place random alcohol and drug testing, they need to find the right balance between safety, human rights and privacy, Anbar says.

“They should have clear drug and alcohol policies, which are not discriminatory on their face.”

It’s essential for workplace drug-testing policies to be connected to job performance, she adds. “You want to avoid an arbitrary policy that allows random drug testing when it’s not necessary for maintaining safety.”

In addition, testing should be carried out in the least intrusive way possible and in the most private way possible, she says.

“The terms should outline when testing is permissible and what factors the company would consider before taking the steps,” Anbar says.

Employers are more likely to succeed in justifying random drug and alcohol testing to a third party if they can show they first tried other measures to curb workplace substance impairment, she says.

“A company that had other options available, but instead opts for random testing won’t be viewed favourably,” she says.

Policies should not define too narrowly the consequences of failing an alcohol or drug impairment test, Anbar adds. “No two cases will be the same.”

Each employee should be treated on an individual basis, taking into account such issues as whether they have a prescription for medical marijuana or suffer from a substance disorder, she says.   

“There will always be aggravating and mitigating factors. The key for companies is to approach it in a thoughtful manner and not make any rash decisions that could ultimately violate an employee’s human rights,” she says.

Employers get into trouble when they try to bring in overly narrow policies or make a blanket assessment, she says.

It’s a tricky area, so it’s a good idea to get expert advice, especially in cases where employees have addiction issues, Anbar adds.

“Employers need to remember not to discriminate, stereotype, or blanket-assess,” she says. “The best practice is to educate themselves, get proper advice, and confirm whether an employee has a disability when dealing with drugs or alcohol.”

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