LIVELY AND INFORMED DISCUSSION ABOUT THE SUBTLETIES IN THE DISCUSSION ON YESTERDAY'S POST ABOUT RIGHTS VS. RIGHTS

Dr. Ray Baker and I got into a bit of a debate over the last post here about Human Rights vs. Public Safety. 

Because he was part of the team who developed the new IMPAIRED AT WORK protocol for the Canadian Human Rights Commission, I asked him the following:

Can an employee who appears to be impaired during his/her duties be removed for the next 24 hours?

I think this is the case in the airlines and I think the Americans are tougher than we are, yes?

His answer:

It comes down to a case of human rights vs. safety. If safety is a factor than it always trumps the individualy worker’s rights.

So, yup, safety sensitive workers ( vehicle operators, equipment operators, people who perform functions who when they mess up might hurt somebody else) or highly responsible (teachers, doctors) personnel MUST be immediately removed from the safety sensitive task if impairment is suspected.  To not do so is both a criminal and WCB offence.

Usually when they are removed, they may be sent for some sort of brief evaluation to determine the cause of impairment.  Sometimes it’s drug testing, but sometimes its a more thorough occupational medical evaluation. Then they can’t go back to work until/unless found medically fit.  Sometimes that means a treatment program followed by a period of monitoring.

Which he followed by adding:

The neat thing about this approach is this:

If a lousy employee with bad attitude is impaired at work or if he/she demonstrates unacceptable attendance, performance or behaviour, then the employer may discipline them up to firing them (just cause)

But if the employee can demonstrate a disability or disorder that could account for the impairment/attendance/performance/behaviour, then the employer is forced to “accommodate them”

But built into this is the obligation for the bad employee to:

1. undergo diagnostic evaluation and treatment planning

2. demonstrate compliance with the treatment plan

3. continue to demonstrate ongoing compliance with a continuing care plan in the case of a chronic condition with relapse potential

so either way you got them: either the employer gets back an improved worker

or the worker continues on their path and the employer will be allowed to get rid of them

Get well or get gone.

Works like a hot damn.

And I know more than a few people who are now in good recovery because their employer finally grew a spine and fired them.  That was enough of a ‘bottom’ for them to do what only they can do and seek help

YOUR RIGHT TO DRINK OR DRUG ON THE JOB IS IN THE CHARTER AND YOUR UNION AGREES WITH IT

HUMAN RIGHTS CAN OUTWEIGH PUBLIC SAFETY

Toronto transit staff won’t likely be subject to drug tests. Howard Levitt explains why.

• Vancouver Sun
• 11 Mar 2017
• Financial Post Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. hlevitt@levittllp.com Twitter.com/HowardLevittLaw

PETER J. THOMPSON/ FILES

Courts should place public safety first over political correctness so passengers, in the Toronto Transit Commission case, don’t have to worry about the sobriety of their driver, writes Howard Levitt.

New York, London and Sydney all have random testing for their transit workers. Although Toronto Transit Commission workers also deal with public safety every day, they probably won’t end up having to comply with random drug and alcohol tests. Why not?

The answer is that the Ontario Human Rights Code considers drug and alcohol addiction a disability and protects employees from being discriminated against by being tested. In other words, you can’t single them out, you can’t fire them and you can’t administer random drug and alcohol tests. But that doesn’t mean the TTC shouldn’t try.

When the TTC gave notice to its union that it intended to implement random drug testing of all employees in “safety-sensitive positions,” including bus, streetcar and subway operators, starting March 1, the union’s response was swift and predictable.

It argued that accusations of systemic drug and alcohol use were unfounded and that oral swabbing for illicit drugs and alcohol breathalyzer tests violated employees’ charter rights. The union filed an injunction blocking the implementation of the program, now delayed until April 1, pending a court decision.

The employer claims that drug and alcohol abuse among its workers is a big problem, and it has done its homework. Court documents cite over 100 positive employee drug and alcohol tests between 2012 and 2016. Other incidents include criminal law issues, such as employees purchasing crystal meth during breaks, consuming cocaine in the bathroom and even a TTC crane operator trafficking OxyContin and methadone. In the eyes of one TTC investigator, these are not isolated incidents, but indicative of a “culture of drug and alcohol abuse at the TTC.”

You would think that, given this evidence, random drug testing should be the next logical step. While it is, and the TTC believes it is, courts and arbitrators will almost assuredly determine otherwise.

The law says random drug testing cannot be imposed unless there is a demonstrated history of problems in the workplace related to drug or alcohol abuse, the positions are “safety sensitive,” and there is a real, demonstrable risk of injury.

Whether the TTC can meet this threshold will come down to management’s ability to establish that a few hundred positive tests over several years constitutes a systemic drug and alcohol problem in a public transit company that employs over 10,000 workers in so-called “safety sensitive” positions. My view is that it won’t.

That’s because the real issue standing in the TTC’s way has very little to do with the union and statute law. Their real fight is a series of decisions written predominantly by Human Rights Tribunal members and arbitrators in human rights cases. Until Parliament and the legislature intervene and rewrite the law to protect the public, the union will likely prevail.

Even if the TTC is ultimately granted permission to administer random drug tests, a positive test result will not result in the ability to terminate employees for cause. The employer must demonstrate that the behaviour prevents the employee from effectively and efficiently carrying out his or her duties. It must also provide employees with warnings and an opportunity to seek treatment. Only if an employer provides a reasonable treatment opportunity and the employee fails to comply and improve performance, will the employer generally have just cause for dismissal.

The TTC is acting responsibly by prioritizing public safety. Passengers should be able to rely on public transit without worrying about the sobriety of their driver. Let’s hope the court will see the issue through that prism. If not, there may be one fortunate concomitant, a public reaction against human rights tribunals placing political correctness over public safety.