In an early application of its “Fitness for Duty” policy (the “Policy”), the Toronto Transit Commission (the “TTC”) has suspended a driver who tested positive for a prohibited substance in June 2017. As previously discussed on our blog in October of 2011, the TTC implemented a policy which provides for random drug and alcohol testing of employees. The Policy has been subject to significant challenge by the Amalgamated Transit Union, Local 113 (“ATU 113”). Random testing began on May 8, 2017 and within one (1) day, two (2) TTC employees tested positive for prohibited substances. By the end of the first month, four (4) employees had tested positive. Prior to June 2017, none of the TTC employees who tested positive for drugs or alcohol were vehicle or machinery operators.
The driver, who was one of more than three hundred (300) TTC employees to have been tested so far, was suspended with pay under confidential conditions. Neither the driver’s name, nor the type of substance he or she tested positive for was disclosed. The driver is the eighth employee to test positive for drugs or alcohol since the Policy was upheld by an Ontario Superior Court in April, 2017.
Subject of Litigation
The suspension comes on the heels of the decision in an application for an interlocutory injunction preventing implementation of the Policy which was released in April. The court in that case, Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, denied the union’s request for an injunction, potentially paving the way for more testing and more suspensions and/or terminations. The court found that the nature of the TTC’s workplace necessitated a diminished expectation of privacy and that a safety-sensitive environment will often require additional safeguards. Some of the specific factors pointing to this conclusion which were discussed by the court included the fact that:
- Other TTC employees expressed unwillingness to work with employees who were under the influence of drugs or alcohol.
- Candidates who applied to work at the TTC were required to pass a drug test as a condition of employment and therefore could reasonably expect that they would need to remain sober to remain employed.
- The workplace itself was the entire city of Toronto, and Toronto residents would have an interest in maintaining a safe transit system.
- The thresholds set by the TTC for ‘impairment’ were relatively high compared to other guidelines (ie. a TTC employee would require higher concentrations of a given drug in their system in order to test positive for it).
- The Policy applied to all employees regardless of rank or position.
- The TTC had made employees amply aware of the Policy prior to its implementation.
This is similar reasoning to that applied by the Supreme Court of Canada in Stewart v. Elk Valley Coal Corp. In that case, the safety requirements of a mine were said to justify a policy aimed at controlling drug and alcohol use in the workplace. See our blog on the topic here.
The motion, which worked its way through Ontario courts over a period of months, is only one aspect of the ongoing litigation. The application in this case was only an effort to stall implementation of the policy and did not rule on the policy’s overall validity. Arbitration to answer that question began in 2011, and remains ongoing. The outcome of the arbitration will likely set an important precedent for employers seeking to implement and enforce drug and alcohol related policies. As the federal government moves to legalize marijuana, some employers fear the incidence of workplace intoxication will increase. Accordingly, many businesses will wish to implement their own drug and alcohol policies to mitigate the chance of workplace accidents and injuries. Exactly what it is employers in unionized workplaces may and may not do in this regard remains the topic of some debate.
In Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd., (“Irving Pulp & Paper”) the Supreme Court ruled that a dangerous workplace was not sufficient grounds to justify a random drug and alcohol testing policy. The court noted that evidence of enhanced safety risks, such as evidence which would point to a substance abuse problem in the workplace is required in order to make such a policy valid. The Supreme Court provided the example of a workplace accident or near-miss resulting from drug or alcohol abuse and stated that those would be grounds for random testing. However, it also speculated that there may be situations in which the safety concerns of a particular workplace would be so severe that random drug and alcohol testing may be warranted even without additional evidence that a problem exists. The decision in the ongoing arbitration will likely help to define the boundaries of drug and alcohol testing policies and provide useful clarification on some of the fine points of the decision in Irving Pulp & Paper. The extent to which employers will be able to monitor and control the use of drugs and alcohol by employees in the workplace remains to be seen.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.