Safety versus privacy dispute revived as Toronto transit workers face random drug and alcohol testing
By Jeffrey R. Smith
When an employee shows up for work intoxicated, it opens up the possibility for a world of trouble for everyone involved, including the employee, the employer and co-workers.
Decreased productivity, inferior performance and poor interactions with other employees are just some of the potential negatives that can arise. And if the workplace is one that requires a certain level of skill and involves hazards to the worker and others, the risk ramps up to include health and safety and employer liability.
For most employers, it would seem the best way to address the risk of impaired employees is to randomly test them for drug and alcohol use. But implementing this testing has not been easy in Canada. There has been a pile of decisions by courts and arbitrators — sometimes contradicting each other — that has left the ability for employers to conduct such tests up in the air. The evolution of case law in this area has shown an increasing acceptability for drug and alcohol testing for safety-sensitive jobs, but there are still questions of privacy and intrusiveness of the testing methods that have to be considered.
The debate over random drug and alcohol testing for employees was revived recently when the Toronto Transit Commission (TTC) decided to implement the practice for its drivers, operators, mechanics and other employees who worked in jobs where safety of themselves, co-workers and the public could be affected by impairment. The policy was prompted by a fatal bus accident where the bus driver involved was found to be in possession of marijuana. As in other similar circumstances, the union opposed the practice, claiming the testing — urine for alcohol testing and saliva for drug testing — was intrusive and didn’t prove impairment. In addition, it argued such cases were so infrequent there wasn’t sufficient evidence showing a problem existed that necessitated such a policy.
This brings up a main point of the debate against drug testing — in most cases, a positive drug test does not show present impairment, only that the subject has used drugs recently. Drugs like marijuana can remain in someone’s system for weeks, causing a positive test even if the effects have long worn off. Alcohol testing is a different matter, as a high level of alcohol in someone’s system generally means that individual is impaired at the time. However, both types of testing have raised howls of protest by unions and others over their invasion of privacy, especially if there is no real evidence of an existing problem with impaired employees.
Earlier this year, the New Brunswick Court of Appeal approved random alcohol testing for employees in an Irving Pulp and Paper mill because the employees worked with dangerous chemicals and equipment. An accident could not only endanger workers, but also the public, so the court found it was essential for employees to be working with all their facilities. Impairment could be disastrous and the danger outweighed the privacy rights of employees nor the need for Irving to prove an existing alcohol problem to justify the policy.
The New Brunswick decision follows a trend of cases where testing is becoming more acceptable for safety-sensitive positions. But that case also was an appeal of an original decision where an arbitrator felt the testing was too extreme if there was no existing problem. Though there was a level of danger in the workplace, it wasn’t dangerous enough to push aside employees’ privacy. This distinction of levels of danger in a workplace to justify testing was dismissed by the Court of Appeal.
So what do you think about drug and alcohol testing? Do employers have the right to know if employees show up to work impaired, whether they are in a safety-sensitive job or not? If only certain jobs for an employer are safety-sensitive, should only those be tested? How dangerous should a job be to warrant testing? At what point do worker and public safety trump employee privacy?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at employment law from a business perspective. He can be reached at [email protected]. For more information, visit www.employmentlawtoday.com.
