At a meeting on November 30^th, the Toronto Transit Commission (“TTC”) board voted in favour of a plan to push ahead with the implementation of random drug testing – despite the fact that the matter is still being arbitrated. The vote was based on the recommendations of a confidential report tabled for the board’s approval.

According to the TTC’s CEO, “[they] feel that there is a risk that cannot be ignored or tolerated any longer” and so the agency has earmarked $1.3 million for the implementation of the policy which is expected to take effect in the next year.

As highlighted below, the TTC may face some bumps on the road to implementation. Although we do not yet know what the policy will entail, we expect some of these challenges can be addressed through proper anticipation of the problems and inclusive design.

This article will set out some of these challenges in light of the Ontario Human Rights Commission’s recently-updated Policy on drug and alcohol testing.

• Labour challenges

At the board meeting, the Amalgamated Transit Union, Local 113, raised concerns with the TTC’s plans to forge ahead with random drug testing. While the union supports the broader goal of “eliminating impairment in the transit industry”, it submits that there are less invasive means to achieve this end (e.g. using an “optical scanner” to test impairment which would not capture recreational off-hours drug use).

In an interview with the Toronto Star, the Union president went so far as to suggest that the Union could seek a court injunction to preclude the policy’s implementation. He also hinted that job action could be used as another way for the Union to express its discontent with the policy.

In order to ensure that the policy is successful, the TTC will need to generate buy-in from its workers. This can perhaps be achieved by involving the Union or frontline employees in the policy’s development at as early a stage possible.

• Human rights challenges

Drug and alcohol use are addressed by the Human Rights Code insofar as they relate to an addiction or substance-abuse issue – which are considered “disabilities” for the purposes of that legislation. Drug and alcohol testing is problematic as it could result in an employee being penalized for their having an addiction or substance-abuse issue—i.e. a disability.

In order to justify the policy, the TTC will likely rely on a common defence under the Code and argue that the testing is related to a bona fide requirement (“BFR”) of the job using the test from Meiorin. This means that they will have to prove that the testing:

• Was adopted for a purpose that is rationally connected to performing the job
• Was adopted in an honest and good faith belief that it was necessary to fulfilling that legitimate job-related purpose
• Is reasonably necessary to accomplish that legitimate work-related purpose. To show this, the employer must demonstrate that it is impossible to accommodate the person without imposing undue hardship upon the employer

In other words, the BFR will only be satisfied if the TTC can establish a link between job performance and impairment. For example, positions that are “safety-sensitive” in nature (more below).

Where the BFR is made out, the TTC will still need to accommodate those employees with addiction or substance-abuse issues who screen positively on the test. This means that before the employer can take disciplinary action on an employee who fails the drug testing, they must explore other options. For example, granting them a medical leave or reassigning them a non-“safety-sensitive” position while they pursue treatment.

It is also important to note that the “random” nature of the testing could also raise potential human rights issues. Employees may argue that, in the process of carrying out the “random” tests, the employer applied its discretion to test in a discriminatory manner. Among other things, employees could argue that they were “profiled” or selected based on Code-protected characteristics like race, ancestry, disability, creed, etc.

In order to ensure that its new drug testing system does not run afoul of the Human Rights Code, the TTC policy will have to anticipate and address the potential human rights issues. This might be accomplished by including some strong language around the duty to accommodate and a clear process outlining how employees will be selected for testing.

• Application challenges

As indicated above, in order to rely on the BFR defence, the TTC will have to be able to prove that the purpose of the testing is rationally connected to the job in question. While this connection can be easily established for drivers or conductors, it may be less clear for other TTC employees (e.g. those in office roles).

In order for any drug or alcohol testing policy to be justifiable, it must be limited to those employees in “safety-sensitive” roles. According to the OHRC’s Policy, a “safety-sensitive” job is:

 “[…]one in which incapacity due to drug or alcohol impairment could result in a direct and significant risk of injury to the employee, others or the environment.”

In order to prevent a breach of the Human Rights Code, the TTC may want to consider scoping its policy narrowly to include only those roles where safety plays a significant and critical role and would be compromised by impairment. It is important to note that the safety component will have to be real and significant enough to justify a possible encroachment on privacy and human rights.

• Privacy challenges

The Union has also raised concerns that the implementation of the policy will infringe upon the privacy rights of its members. The law suggests that, while some infringement on employee privacy rights may be permissible in the pursuit of public and employee safety, this infringement will not automatically be justified due to the safety-sensitive nature of the work. Instead, there is a balancing act to achieve. Potential risks to safety must be weighed against the impact on the employees’ privacy rights.

In order to avoid legal challenges, the TTC’s policy will have to be designed in contemplation of this balancing act. Among other things, this could be achieved by setting out strict rules with respect to the administration, handling and purpose of the testing.

Conclusion

Although there are several significant challenges associated with the implementation of a random drug testing program, these challenges may not be insurmountable. The program’s success will largely depend on design – how the TTC anticipates the challenges identified above. With a strong, inclusively designed policy in place, the TTC may be able to resolve (at least some) of these challenges.

Megan Forward

About the Author: Toronto Employment Lawyer Megan Forward develops and delivers training sessions for her clients and conducts investigations and workplace assessments to help employers resolve issues related to harassment, poisoned workplace environments and bullying.