Monday, April 24, 2017

Court Provides Insight into Random Drug and Alcohol Testing

Generally speaking, courts and arbitrators in Canada have held random drug and alcohol testing is not permitted. The recent April decision of the Ontario Superior Court in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 provides some insight into the analysis a court may undertake when assessing random testing.

Historical Background

In 2013 in Communications, Energy and Paper Workers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd (“Irving”), the Supreme Court of Canada confirmed a company may conduct random alcohol testing for a safety-sensitive position where the company can establish it operates a dangerous workplace and there is a general problem with alcohol abuse in the workplace. This two-pronged test is a very high obstacle to overcome.

In Irving The Supreme Court set out three specific instances, evein safety-sensitive industries where testing may occur:

(i)       there is reasonable cause to believe that the employee is impaired while on duty,
(ii)      the employee habeen directly involved in a workplace accident or significant incident, or
(iii)      the employee is returning to worafter treatment for substance abuse.

The Canadian approach to drug and alcohol testing, unlike the situation in the U.S., places significant emphasis on privacy rights.

The fact that a workplace is dangerous or safety-sensitive is merely the beginning of the inquiry and the balancing of interests.

Irving set out the blueprint:

a) No employee can be subjected to random, unannouncealcohol or drug testing save as part of an agreerehabilitative program

b) An employer may require alcohol or drug testing of an individual where the facts give it reasonable cause to do so

c) It is within the prerogative of managementrights under a collective agreement to also require alcohol or drug testing following a significant incident, accident or near miss where it may be important to identify the root cause of what occurred

d)  Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have a problem with alcohol or drug use. As part of an employee’s program of rehabilitation, sucagreement or policierequiring sucagreements may properly involve random, unannounced alcohol or drug testingenerally for a limited period of time, most commonly two years. In a unionized workplace, the union must be involved in the agreement whicestablishes the terms of a recoverinemployee’s ongoing employment, including random, unannounced testing. This is the onlexceptionacircumstance in which the otherwise protecteemployee interest of privacand dignity of the person must yield to the interests of safety and rehabilitation, to allow for random and unannounced alcohol or drug testing.

Since the Irving decision, random drug testing has been struck down in countless cases.

The case law emphasizes a distinctly Canadian approach requiring cogent evidence of “enhanced safety risks such as evidence of a general problem with substance abuse in the workplace to justify random testing in a safety-sensitive workplace. Additionally, any testing must be likely to effectively address the problem.

Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (“TTC”)

In this recent decision the Amalgamated Transit Union, Local 113 (“ATU”) applied for an interlocutory injunction restraining implementation of random drug and alcohol testing of members of the ATU until the completion of an arbitration hearing concerning the validity of the TTC’s drug and alcohol testing policy.

In September 2008, the TTC approved implementation of a “Fitness for Duty Policy” (the “Policy”). The Policy took effect on October 17, 2010. The purpose of the Policy was to “[e]nsure the health and safety of Commission employees and the safety of Commission customers and members of the public.” 
The Policy was intended to achieve this goal by requiring that TTC employees and senior management be mentally and physically fit to perform their assigned tasks without any limitations resulting from, among other things, the use or effects of drugs or alcohol. The Policy allows for the identification of individuals who create safety risks in the workplace due to drug or alcohol use and for the treatment and return to work of employees with substance abuse disorders. It also provides for disciplinary action against employees in defined circumstances.
The Fitness for Duty Policy, provided for drug and alcohol testing of employees in safety sensitive, specified management and designated executive positions. The Policy required drug and alcohol testing in the following situations: 
a) where there is a reasonable cause to believe alcohol or drug use resulted in the employee being unfit for duty; 
b) as part of a full investigation into a significant work-related accident or incident; 
c) where an employee is returning to duty after violating the Fitness for Duty Policy;
d) where an employee is returning to duty after treatment for drug or alcohol abuse; and
e) as a final condition of appointment to a safety sensitive position.
After the TTC announced its Fitness for Duty Policy but prior to it taking effect, the ATU filed a policy grievance under its Collective Agreement. In the normal course, the policy grievance was referred to arbitration, which started on March 8, 2011 before Arbitrator M.K. Saltman. Even though six years have elapsed, the arbitration is not yet completed. The ATU has not yet completed its case and the TTC’s case has not started.  
The ATU’s position before the Arbitrator in the arbitration was that the entire Fitness for Duty Policy is contrary to the Collective Agreement and the Ontario Human Rights Code, R.S.O. 1990, c. H.19.
 In the arbitration, the ATU asked for: 
a)  an order prohibiting the respondent from continuing the implementation of the Fitness for Duty Policy; 
b)  an order requiring management to receive human rights and antidiscrimination training with respect to the matters raised in the grievance; and
c) damages for breach of its right to be free from discrimination, for mental distress and for other “non-economic losses”.
On October 19, 2011, the TTC amended the Fitness for Duty Policy to require random alcohol and drug testing.
The TTC had advised the applicants that random testing would apply to employees in safety-sensitive, specified management, senior management and designated executive positions including that of the Chief Executive Officer. 
Employees randomly selected for testing would take an alcohol breathalyzer test and an oral fluid drug test. 
Administration of breathalyzer tests and the collection of oral fluid samples would be carried out by qualified and trained technicians from DriverCheck Inc., a company that provides alcohol and drug testing services to more than 5000 employers in Canada [under agreed contracts with employees].
Random testing was added to the Fitness for Duty Policy in October 2011. The approval of implementation of random testing, however, was delayed for several years. The TTC approved implementation of random testing on March 23, 2016, slightly less than three years after the release of the Irving decision.

When the TTC announced implementation of random testing, the ATU brought the motion for an interlocutory injunction.

The Court looked at the circumstances surrounding the decision to institute random drug and alcohol testing. It noted the following:

• First, external candidates interested in working for the TTC in a safety sensitive or designated management or executive position must pass a pre-employment urinalysis test for drug use. 
• The judge was satisfied that a reasonable person would assume that if he or she had to test negatively for drugs and alcohol to get a job with the TTC, then he or she would be required to continue to test negatively for drugs and alcohol to keep that job with the TTC. 
• A notable number of TTC employees do not want to work with persons who test positive for drugs or alcohol. “This attitude is not surprising. If a tragic accident happens, its consequences will not be limited to the victims and the person who was possibly unfit. Everyone caught up in the occurrence will be affected by the resulting legal proceedings that can go on for years.” 
• It was very likely that an employee with a substance use disorder would report to work in an impaired condition. 
• The TTC’s experience between October 2010 and December 2016, was that 187 (or approximately 2.4%) external applicants for designated or safety-sensitive positions — individuals who knew they would be subjected to drug testing — returned positive urinalysis tests for drugs.
• The negative attitude of TTC’s employees towards working with individuals who test positive for alcohol or drugs, was one of the circumstances surrounding the TTC’s decision to institute random drug and alcohol testing.  The judge was satisfied that TTC management and its employees, both of whom assist people in making approximately 1.8 million journeys on the TTC’s subway, buses and streetcars every day, expect that steps will be taken to make sure that those in safety critical positions are fit for duty. This safety concern would reasonably diminish their expectation of privacy concerning their drug and alcohol consumption.   
• The nature of the workplace was also part of the circumstances surrounding the respondent’s decision to institute random drug and alcohol testing. In Irving, the workplace was a pulp and paper mill. In this case the workplace included the subway, buses and streetcars that travel throughout the city. The workplace genuinely is Toronto itself.    
• The procedure for and method of testing were also circumstances surrounding the TTC’s decision to institute random drug and alcohol testing. Just because an expectation of privacy is diminished does not mean it is eliminated. 
• The Fitness for Duty Policy contained controls intended to ensure accountability for the information collected. Further, there was no evidence that, under the current testing policy, the results of drug and alcohol tests were used in a manner inconsistent with the reasonable expectations of the persons submitting to the testing. 
• The procedures for collection, laboratory analysis and reporting of the drug tests provided for in the Policy gave employees an opportunity to challenge and explain their test results before the results were reported to the respondent. 
• The fact that a refusal to submit to a random test was considered a policy violation, just like a positive test result, added a coercive element to the Fitness for Duty Policy. The judge was satisfied that it is impossible to effectively enforce the Policy if an employee can simply refuse to test. “There is no other sensible way to view a refusal to submit to a random test.
• The judge was satisfied that the nature of the Fitness for Duty Policy was not only disciplinary but also remedial. He was satisfied that employees had some degree of control over the information collected and generated under the policy and that there was accountability for the information collected. 
• The judge was satisfied that Fitness for Duty Policy was reasonably tailored to its stated health and safety purpose.
• Part of the circumstances surrounding the TTC’s decision to institute random drug and alcohol testing was the state of the law of damages with respect to breaches of privacy. The Ontario Court of Appeal recognized a common-law tort of invasion of privacy in the context of intrusion upon seclusion in Jones v. Tsige, 2012 ONCA 32 (CanLII). In that case, the Court of Appeal found that the defendant committed the tort when she used her position as a bank employee to access private bank records of her ex-spouse’s common-law partner 174 times. Significantly, for the purposes of this motion, the Court of Appeal awarded damages for the privacy violation committed by the defendant. The judge was satisfied that the considerations in awarding damages outlined in Jones v. Tsige at paragraph 87 can be adapted to this situation so that a court can calculate damages for wrongfully obtaining breath or fluid samples from employees, should that be the result of the arbitration.

The judge was not persuaded by the evidence that instituting random drug and alcohol testing created the likelihood of psychological harm to the TTC employees. Despite random testing being commonplace in the US, Australia and other foreign jurisdictions, there was is no evidence that employees subject to random testing in those countries suffer any emotional or psychological harm.
By denying the injunction, the Court has permitted the TTC to begin to implement its random drug and alcohol testing program pending the outcome of the arbitration. It has provided important insight into the analysis that a court may undertake when assessing random testing.


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