But union seeking injunction from arbitrator
More than four years into arbitration over its “Fitness for Duty” policy, the Toronto Transit Commission (TTC) is moving forward with random drug and alcohol testing of employees.
Such testing has technically been part of the Fitness for Duty policy since 2011 but funding for the program wasn’t approved. Before the company could move forward with the policy, Amalgamated Transit Union (ATU) Local 113 — the union representing a majority of the TTC’s employees — took the issue to arbitration.
On April 18, TTC CEO Andy Byford said in a letter to employees the TTC board had approved funding for the random testing. Byford also announced the TTC would be lobbying the Ontario government to consider legislation that would make random drug and alcohol testing mandatory for public transit agencies.
Currently, the TTC tests for drugs and alcohol after an incident occurs, after an employee returns from a treatment program, during pre-employment and in any instance it has reason to believe an employee is under the influence, according to Byford.
“This is a safety issue,” said Brad Ross, executive director of corporate communications at the TTC. “We have a responsibility as an employer to our 14,000 employees, as well as a responsibility to our 1.8 million daily riders to provide the safest transit system we possibly can.”
Instances of impairment or refusal to take an impairment test are on the rise among employees, said Ross, and random testing will act as a deterrent.
Employees would be required to submit to a breathalyzer test and submit an oral fluid sample, he said. The program — designed to detect alcohol, marijuana, cocaine, opiates, amphetamines and phencyclidine — would be administered by a third party.
It would work on a pass-fail basis and be designed to determine whether an employee was impaired at the time of the test, not to determine whether employees consume drugs or alcohol in general, said Byford.
Union opposition
Despite the ongoing arbitration, the TTC said it is working to finalize the program.
But Local 113 criticized the TTC’s decision.
“We take the position that we’re in arbitration,” said its president Bob Kinnear.
“We’re to wait for the arbitrator’s decision because that’s what the parties agreed to. That’s the process that we agreed to. Having said that, it looks like the TTC is just going to arbitrarily implement it. So we are looking at our legal options. We’re trying to go back in front of the arbitrator to ask the arbitrator to impose an injunction on the TTC to say that they cannot (implement the program) until the proceedings are concluded.”
If the arbitrator is unable or unwilling to grant the injunction, said Kinnear, the union will pursue an injunction through the court system.
In 2013, Canada’s Supreme Court ruled that random drug and alcohol testing was not justified in the workplace unless the employer could provide evidence of a substance abuse problem among the workforce.
“The TTC just doesn’t reflect that at all,” said Kinnear.
“This is negatively impacting employees. It casts an aspersion over employees. The company is moving forward in the way that it casts an aspersion over our employees to suggest that there’s somehow some systemic drug and alcohol problem at the TTC, when it’s just not the case.”
When the TTC originally moved to implement random drug and alcohol testing, the union proposed an alternative, said Kinnear. Because sleep deprivation is a serious contributor to impairment in transit employees, the union hoped the TTC would introduce optical scanners in the workplace. Optical scanners would determine impairment but would not conclude whether that impairment was due to sleep deprivation or the use of drugs or alcohol.
“We know in the transit industry that the most pressing impairment we face is sleep impairment or lack of sleep because of the hours we work, because of the shift work we do,” said Kinnear.
“Our operators are out there 12.5 hour a day, five days a week. The TTC didn’t even sit down to talk with us about it. They didn’t entertain it in any way, shape or form.”
Random testing would infringe on employees’ privacy, said Kinnear. TTC employees would be required to provide their employer with medical information — such as any medication that could potentially alter testing results — to the employer.
Another concern for the union is the lack of access and information.
“There’s no recourse for us as representatives of the employees,” said Kinnear.
“If the test comes back positive, that’s it. So there’s a lot of concern with how that test is being handled, how it’s being conducted and what the conclusion of that test is.”
Steps required
There are several steps the TTC needs to take before imposing its policy, said Chelsea Rasmussen, an employment and labour associate at Dentons Canada in Toronto.
“If the employer unilaterally introduces the policy under the management rights clause of the collective agreement, this could raise the issue that the policy is an unreasonable exercise of management rights, with unions often arguing because of the intrusion on the employees’ right to privacy,” she said.
“We would suggest that employers implement a confidential and secure process for the actual taking of the sample, testing the sample, returning the sample to the workplace and also for communicating the results to the employee that had been tested.”
The TTC will need to ensure employees are fully aware they are subject to a random drug and alcohol testing policy, said Rasmussen.
To justify the policy, the TTC would need to show it represents a proportionate response to the safety concerns of the workplace while also balancing the competing interests of employee privacy, she said.
“The testing should also be limited to determining the actual impairment of the employee’s ability to perform the essential duties of their safety-sensitive job, it shouldn’t be directed toward simply identifying the presence of drugs or alcohol in the body,” said Rasmussen.
As well, a comprehensive drug and alcohol testing policy should also include measures for accommodating
employees struggling with addiction, she said.
Currently, there is nothing preventing the transit commission from implementing the policy, said Rasmussen.
However, if the arbitrator ultimately concludes the policy is not justified in the circumstances, the policy would likely be found in violation of the collective agreement and the employer would have to revisit the practice.
“It’s a big issue in human rights,” said Rasmussen, “in both a unionized and non-unionized context.”
Such testing has technically been part of the Fitness for Duty policy since 2011 but funding for the program wasn’t approved. Before the company could move forward with the policy, Amalgamated Transit Union (ATU) Local 113 — the union representing a majority of the TTC’s employees — took the issue to arbitration.
On April 18, TTC CEO Andy Byford said in a letter to employees the TTC board had approved funding for the random testing. Byford also announced the TTC would be lobbying the Ontario government to consider legislation that would make random drug and alcohol testing mandatory for public transit agencies.
Currently, the TTC tests for drugs and alcohol after an incident occurs, after an employee returns from a treatment program, during pre-employment and in any instance it has reason to believe an employee is under the influence, according to Byford.
“This is a safety issue,” said Brad Ross, executive director of corporate communications at the TTC. “We have a responsibility as an employer to our 14,000 employees, as well as a responsibility to our 1.8 million daily riders to provide the safest transit system we possibly can.”
Instances of impairment or refusal to take an impairment test are on the rise among employees, said Ross, and random testing will act as a deterrent.
Employees would be required to submit to a breathalyzer test and submit an oral fluid sample, he said. The program — designed to detect alcohol, marijuana, cocaine, opiates, amphetamines and phencyclidine — would be administered by a third party.
It would work on a pass-fail basis and be designed to determine whether an employee was impaired at the time of the test, not to determine whether employees consume drugs or alcohol in general, said Byford.
Union opposition
Despite the ongoing arbitration, the TTC said it is working to finalize the program.
But Local 113 criticized the TTC’s decision.
“We take the position that we’re in arbitration,” said its president Bob Kinnear.
“We’re to wait for the arbitrator’s decision because that’s what the parties agreed to. That’s the process that we agreed to. Having said that, it looks like the TTC is just going to arbitrarily implement it. So we are looking at our legal options. We’re trying to go back in front of the arbitrator to ask the arbitrator to impose an injunction on the TTC to say that they cannot (implement the program) until the proceedings are concluded.”
If the arbitrator is unable or unwilling to grant the injunction, said Kinnear, the union will pursue an injunction through the court system.
In 2013, Canada’s Supreme Court ruled that random drug and alcohol testing was not justified in the workplace unless the employer could provide evidence of a substance abuse problem among the workforce.
“The TTC just doesn’t reflect that at all,” said Kinnear.
“This is negatively impacting employees. It casts an aspersion over employees. The company is moving forward in the way that it casts an aspersion over our employees to suggest that there’s somehow some systemic drug and alcohol problem at the TTC, when it’s just not the case.”
When the TTC originally moved to implement random drug and alcohol testing, the union proposed an alternative, said Kinnear. Because sleep deprivation is a serious contributor to impairment in transit employees, the union hoped the TTC would introduce optical scanners in the workplace. Optical scanners would determine impairment but would not conclude whether that impairment was due to sleep deprivation or the use of drugs or alcohol.
“We know in the transit industry that the most pressing impairment we face is sleep impairment or lack of sleep because of the hours we work, because of the shift work we do,” said Kinnear.
“Our operators are out there 12.5 hour a day, five days a week. The TTC didn’t even sit down to talk with us about it. They didn’t entertain it in any way, shape or form.”
Random testing would infringe on employees’ privacy, said Kinnear. TTC employees would be required to provide their employer with medical information — such as any medication that could potentially alter testing results — to the employer.
Another concern for the union is the lack of access and information.
“There’s no recourse for us as representatives of the employees,” said Kinnear.
“If the test comes back positive, that’s it. So there’s a lot of concern with how that test is being handled, how it’s being conducted and what the conclusion of that test is.”
Steps required
There are several steps the TTC needs to take before imposing its policy, said Chelsea Rasmussen, an employment and labour associate at Dentons Canada in Toronto.
“If the employer unilaterally introduces the policy under the management rights clause of the collective agreement, this could raise the issue that the policy is an unreasonable exercise of management rights, with unions often arguing because of the intrusion on the employees’ right to privacy,” she said.
“We would suggest that employers implement a confidential and secure process for the actual taking of the sample, testing the sample, returning the sample to the workplace and also for communicating the results to the employee that had been tested.”
The TTC will need to ensure employees are fully aware they are subject to a random drug and alcohol testing policy, said Rasmussen.
To justify the policy, the TTC would need to show it represents a proportionate response to the safety concerns of the workplace while also balancing the competing interests of employee privacy, she said.
“The testing should also be limited to determining the actual impairment of the employee’s ability to perform the essential duties of their safety-sensitive job, it shouldn’t be directed toward simply identifying the presence of drugs or alcohol in the body,” said Rasmussen.
As well, a comprehensive drug and alcohol testing policy should also include measures for accommodating
employees struggling with addiction, she said.
Currently, there is nothing preventing the transit commission from implementing the policy, said Rasmussen.
However, if the arbitrator ultimately concludes the policy is not justified in the circumstances, the policy would likely be found in violation of the collective agreement and the employer would have to revisit the practice.
“It’s a big issue in human rights,” said Rasmussen, “in both a unionized and non-unionized context.”
