Question

CASE STUDY: EVIDENCE-BASED HRM Random Drug Testing at the Toronto Transit Commission (TTC)

The Supreme Court of Canada has tended to accept drug testing when there is reasonable cause or following an incident; however, random drug testing has tended to be more controversial. The Toronto Transit Commission (TTC) recently implemented random drug testing, which met with opposition from the Amalgamated Transit Union (ATU) Canada. However, the judge resisted the injunction request from the ATU, based on expert evidence provided by the TTC that oral fluid technology has the ability to determine impairment due to drug use. The TTC’s web-site provides a list of specific drugs the random drug tests are targeting; for example, cocaine, amphetamines, oxyco-done, and marijuana/cannabis. These drugs were targeted

for testing because they “inhibit someone’s ability to per-form their job safely and productively.” The legalization of cannabis for recreational use in Can-ada has become a top-of-mind issue for both management and unions, and language in collective agreements that address its use likely requires revision. According to Linda Silas from the Canadian Federation of Nurses Unions (CFNU): “We as unions—but I think for employers too—are going to have to be very careful for a few years until the evidence is clear . . . the evidence is not there on what cannabis will do, how long it stays in your system, and what impairment [is].” In addition to recreational users, it is estimated that “450,000 Canadians will be using cannabis for medical purposes by 2024,” however, many organizations do not currently have bargained language in place

ques: Once negotiated, what data and information do employers and unions need to assess whether collec-tive agreement language related to drug use/abuse is supporting workplace health and safety?

Answer 1

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Answer:

INTRODUCTION

In April 2017, the Ontario Superior Court of Justice allowed the Toronto Transit Commission (TTC) to proceed with implementing random drug and alcohol testing of safety-sensitive employees, pending the outcome of an ongoing arbitration. The decision, finding in favour of the employer, is a rare and important case on the issue of random workplace drug and alcohol testing, which had been viewed as presenting a high hurdle for employers following the Supreme Court of Canada’s 2013 decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (Irving).

In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, Associate Chief Justice F.N. Marrocco held that the applicant union would not suffer irreparable harm if testing goes ahead, pending the outcome of an arbitration over the issue, and therefore dismissed the union’s application for an injunction.

Blakes, together with Filion Wakely Thorup Angeletti LLP, acted as counsel for the TTC.

BACKGROUND

The TTC is the third largest public transit system in North America, providing an average of 1.8 million journeys every weekday, on subways, buses, streetcars, light rail and Wheel-Trans (paratransit). In September 2008, the TTC approved the adoption of a “Fitness for Duty Policy” (Policy), which requires TTC employees and senior management to report to work “fit for duty”, free from any effects of drugs or alcohol. The Policy introduced pre-employment drug testing via urinalysis, “for-cause” and “post-incident” drug testing via oral fluid swab, and alcohol testing via breathalyzer. Under the Policy, employees who test positive are subject to discipline. Employees who are found to suffer from disabilities due to substance-related issues are accommodated. The Policy reserved the TTC’s right to introduce random testing.

Amalgamated Transit Union, Local 113 (ATU), the union representing approximately 10,000 TTC employees including bus, streetcar and subway operators, fare collectors, cleaning staff and maintenance workers, grieved the Policy when it was implemented in 2010. The ATU asserted that the TTC could not impose the Policy as a management right and claimed breaches of the Human Rights Code and the Canadian Charter of Rights and Freedoms (Charter).

The policy grievance arbitration began in March 2011 and will likely take several more years to complete. In 2016, the TTC announced it would be moving forward with implementing random testing in early 2017.

The ATU sought an injunction to prevent implementation of random testing until the conclusion of the arbitration, arguing (among other things) that it was a violation of its members’ section 8 Charter rights to be free from unreasonable search and seizure and that there would be irreparable harm to their privacy and reputation if the testing was allowed to proceed. At the time of the injunction hearing, the parties were in the sixth year of the arbitration.

TTC’s Random Drug and Alcohol Program

In October 2011, in response to a culture of drug and alcohol use at some of its locations, the TTC announced its intention to expand the Policy to include random testing of employees in safety sensitive and specified management/executive positions. Generally speaking, courts and arbitrators have held random drug and alcohol testing is not permitted in Canada.

However, in the 2013 decision of Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd (“Irving Pulp and Paper”), the Supreme Court of Canada confirmed a company may conduct random alcohol testing for a safety-sensitive position where the company can establish it operates a dangerous workplace and there is a general problem with alcohol abuse in the workplace.

Cognizant of the prevailing law, and its specific health and safety objectives, the TTC’s random testing program was proposed to be carried out as follows:

• Of the relevant employee group, 20% would be randomly selected each year for testing by an independent third party.
• Testing would be conducted through an alcohol breathalyzer and oral fluid sample (e.g., oral fluid swab), not a more invasive method such as blood testing, or one that raises privacy considerations such as urinalysis.
• A request to submit to testing would be communicated to employees, testing itself would take place, and results would be stored, in manner that protects employees privacy and confidentiality.
• Threshold levels for a positive test would be higher than in other internationally recognized programs, ensuring a greater likelihood of impairment at the time of testing based on recent drug use, and minimizing intrusion into an employee’s personal life choices by screening out results that detect previous drug use unlikely to amount to impairment at the time.
• Substances covered by the testing (e.g., cocaine, marijuana, opiates, etc.) would include only those which can impair a user’s psychomotor and cognitive ability.
• Employees would be given the opportunity to challenge and explain test results before they are reported to the TTC. As well, at an employee’s request, a second oral sample could be retested.
• A positive test result would be followed by a review with a Medical Review Officer who would discuss the results with the employee to determine whether there was a legitimate, medical explanation for the result. If so, the Medical Review Officer would have the discretion to report the test as negative.
• The Policy would include treatment for drug and alcohol use should it be appropriate.
• Failure to submit to testing would be a violation of the Policy.

DECISION

To obtain an interlocutory injunction an applicant must establish that:

1. There is a serious issue to be tried
2. The party seeking the injunction will suffer irreparable harm (i.e., harm that cannot adequately be compensated in damages) if the injunction is not granted
3. The balance of convenience, taking into account the public interest, favours granting the relief

Justice Marrocco held that the ATU failed to satisfy the second and third branches of the test and dismissed the application. Justice Marrocco’s findings may have implications for the merits of the case and the instituting of random testing more widely.

First, in finding that there would be no irreparable harm to employees, Justice Marrocco held that TTC employees have a diminished expectation of privacy concerning drug and alcohol consumption. This is due to the safety-sensitive nature of the workplace, the safety concerns inherent in the operation of a mass transit system and the fact that pre-employment drug and alcohol testing was already in place at the TTC. Justice Marrocco found that the proposed testing via breathalyser and oral fluid testing with relatively high cut-off rates was “minimally invasive”. Justice Marrocco also noted that the Policy contains a treatment component for employees who test positive or voluntarily declare a substance abuse problem through substance abuse professionals, retained by the TTC, who specialize in addiction medicine.

Justice Marrocco rejected the ATU’s complaint regarding the risk of false positives, noting that the evidence did not support any risk due to exposure to second-hand smoke, that a certified laboratory would analyze the samples and that there were adequate procedural protections to ensure against false positives. He found the possibility of embarrassment and humiliation from the testing was speculative. Justice Marrocco further held that employees could be compensated in damages for breaches of privacy and, if need be, for wrongful dismissal.

Second, Justice Marrocco found that the balance of convenience weighed in favour of denying the injunction. He accepted evidence of a workplace drug and alcohol problem at the TTC that is hard to detect and verify, and accepted that the deterrent effect of random testing could have an impact on safety. Justice Marrocco held that “if random testing proceeds, [it] will increase the likelihood that an employee in a safety critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the result is known or deterred by the prospect of being randomly tested”. This, he concluded, will increase public safety. Justice Marrocco also rejected the ATU’s argument that the oral fluid testing was not correlated with impairment and therefore could not improve the safety of the TTC. He found that appropriately chosen oral fluid cut-off levels for positive tests, such as the TTC’s, can be used to identify those posing an increased safety risk.

IMPLICATIONS

This decision provides an example of the kind of evidence an employer may need to show in order to justify the test set out in Irving. Here, the TTC was able to demonstrate a drug and alcohol problem in the workplace such that random testing was necessary. It also provides support for the use of oral fluid testing, with appropriate cut-offs to establish a likelihood of impairment. The decision also clarifies that alleged harms to privacy and alleged breaches of section 8 of the Charter, resulting from random drug and alcohol testing are not “irreparable” for the purpose of requiring an injunction. Employers of safety-sensitive, unionized operations considering implementing a random drug and alcohol testing program should take some comfort from the court’s finding that employee privacy rights will not automatically trump the public’s interest in safety.

QUESTION

Once negotiated, what data and information do employers and unions need to assess whether collec-tive agreement language related to drug use/abuse is supporting workplace health and safety?

Crafting Contract Language & Supporting Arguments

A. Guidelines for preparing negotiating proposals.

• The following are overall guidelines for preparing negotiating proposals. Model language from various sources and sample language from actual contracts begin . .
• Be as specific as possible so the purpose is clear. In most cases avoid leaving room for interpretation by the employer or an arbitrator. "The employer shall. . ." or ". ..must. . ." is stronger than, "The employer will consider...," "... will provide reasonable opportunity.. .," or ".. .may..." .
• Avoid proposing specifics that rule out broader rights. If something is left out of a list or the work place changes there is flexibility to request additional items. For instance, instead of: "...
• Employer shall provide at no cost to employees respirators, and gloves necessary for handling hazardous materials" consider less limiting and therefore better language such as; "...
• Employer shall provide at no cost to employees all necessary equivment. includinf.! but not limited to respirators and gloves". .
• Be careful including specifics the employer will not accept. For instance, ifthe current contract provides "reasonable breaks" for VDT operators in order to minimize eye and muscle strain a local may want to specify breaks of a certain duration every so many hours.
• There is nothing to lose by proposing specifics in negotiations IF an arbitrator has already ruled against the local in a grievance filed citing government, academic, or union studies showing the need for such breaks. However, if the issue has never been arbitrated, the local fails to obtain specifics in bargaining, and later tries to arbitrate, the employer may say: "The union is trying to win in arbitration what it could not win in negotiations. "
• This should bring home that everything is not won at the bargaining table. Especially with difficult issues, pursue grievances FIRST based on general language. THEN pursue detailed contract language to cover the specific situation. Whether the initial grievances are successful or not, they allow the union to respond;
• "This was a grievable issue before the negotiations, therefore it is still grievable." . Have contract proposals reviewed by a number of people before they are presented: stewards, members of any health and safety committee, union staff or lawyers.
• Sometimes it is also useful to get common sense input from people who have no connection to your workplace or union. Ifthe hazard affects the community, locals might ask local environmental or neighborhood organizations to review language. .
• Make sure contract clauses don't contradict each other. When language is contradictory or mutually exclusive, it may fall to an arbitrator to decide which clause deserves more weight. .
• Consider whether proposals will harm any members. For example, something that makes one group's job safer could make more work for another group. In such cases locals may need to change or broaden the proposal, educate both groups of workers, or take other action. .
• Use the simplest words and sentences possible. Even if lawyers are involved in drafting language, members should be able to read and understand every clause.

B. Developing supporting arguments

• Developing supporting arguments for each health and safety proposal makes it easier to present and defend the demand. At a minimum supporting arguments should include: .
• Evidence that a hazard exists. For example, accident and illness records, absentee and sick leave rates, statements from workers, photographs, or written or oral expert opinion. .
• Evidence that current approaches don't work. Show that the local has brought the problem to management's attention and no action has been taken.
• Provide copies of requests to remedy problems, safety committee meeting minutes, etc.. Show that existing contract language doesn't work, that the employer's health and safety committee or staff are unresponsive, and so on. Consider lining up workers who are directly affected to speak at the negotiating table.
• The union has the right to bring anyone they choose to the negotiating table, and stories reflecting actual experiences can be difficult for management to refute. .
• Evidence that the proposal will eliminate or reduce the problem. For instance, records from workplaces that have instituted similar measures (possibly from NIOSH, union internationals, or university labor education programs), written or oral expert opinion, manufacturer's specifications for equipment, or Material Safety Data Sheets. . Indications that members are really concerned.
• Petitions, letters, or phone calls, for example. The goal is to show that this is a serious proposal and that members expect to see progress. Depending on the proposals, locals may also want to show that: .
• Productivity will improve. . Stockholders, community members, environmental groups, politicians, or others are concerned. . The employer will save money on insurance, workers compensation, sick leave, absenteeism, and so on. . The employer could risk lawsuits or regulatory action if improvements are not made. .
• Improvements have already been made at the employer's other locations in the U.S. or elsewhere. This may be a particularly effective argument if the workforce compositions in the plants are such that discrimination can be implied.

C. The Cost Issue Evidence that controlling hazards will save money or boost efficiency may be a persuasive component of an argument for health and safety language.

Considering overall costs in evaluating products or processes may tilt the balance in favor ofless hazardous operations or products (i.e., insurance, workers compensation, absenteeism, sick leave, productivity, replacement labor costs, hazardous waste disposal, personal protective equipment, ability to recycle materials, etc.).

However, making economics the key argument sets a dangerous precedent for future talks. By accepting the idea that health and safety measures need only be instituted if they improve the bottom line, unions are also agreeing that if health and safety is too costly it can be ignored. That is not a position most unions find comfortable. A stronger position would be to commit the union to the principle that monetary value cannot be placed on the health of members, while mentioning possible savings as an extra benefit.