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.