Under the Radar
by Greg Burchell
Public transit workers in Toronto may soon be subject to random alcohol and drug testing as the city’s transit service was given the green light to expand testing for employees in safety-sensitive positions.
While specifics about how the program will run has yet to be fleshed out, the Toronto Transit Commission (TTC) will be working with a third party to develop a testing protocol, says Brad Ross, director of communications.
On August 30, a collision involving a TTC bus came under intense scrutiny after a passenger was killed and about a dozen commuters injured when the bus rear-ended a crane truck, which was then propelled into a guardrail. The driver has been charged with criminal negligence causing death and possession of cannabis, notes a statement from the Toronto Police Service.
Organizations employing workers whose jobs have a direct impact on public safety should maintain constant vigilance. Like many such organizations, the TTC has enacted protective measures that seek to ensure employees are not impaired on the job.
A big part of this vigilance relies on the TTC’s Fit for Duty policy, which applies to safety-sensitive positions. This includes operators and their supervisors, as well as some management and designated executives, which make up the majority of the TTC’s employees, Ross says.
The current policy contains provisions that allow the organization to test an employee for alcohol or drugs after a significant work-related incident (such as a serious personal injury, significant loss or damage to property, equipment or vehicles, or a fatality); upon hiring a new employee; or if there is reasonable cause. The last factor encompasses observed use or evidence of use of a substance (for example, the smell of alcohol); erratic or atypical behaviour; changes in physical appearance, behaviour or speech patterns; or any other observations that suggest alcohol or drug use.
“The fact it’s in his possession at work, that’s a big problem,” Jeff Goodman, an employment lawyer with Heenan Blaikie LLP in Toronto, says of the driver charged in connection with the fatal collision. “Why are you bringing illegal narcotics onto a TTC vehicle?”
Prevailing federal protections on human rights have made drug testing, random or pre-employment, an exception rather than the rule. The Canadian Human Rights Act prohibits discrimination on the basis of disability and perceived disability, which may include an employer’s perception that a person’s use of alcohol or drugs makes an employee unfit to work, notes information from the Canadian Human Rights Commission in Ottawa.
With the exception of some very specific industries, strict limitations are placed on drug testing, says Goodman. To test an employee, that worker must work in a safety-sensitive position, which is usually one in which “the immediate effect of your mistake could pose danger to yourself and others,” he explains. This includes driving vehicles or operating equipment or machinery that could result in collisions with other things, or engaging in a task that carries a risk of explosion.
“It’s not an issue for me because, as a lawyer, if I’m a little under the intoxicant and I drop a pencil, no one gets injured,” Goodman quips. “But it becomes much more difficult in the construction industry, for example, when people are driving equipment,” he adds.
The onus rests on the organization to prove that its drug testing policy is a bona fide occupational requirement by meeting the burden of the Meiorin test outlined in the 1999 Supreme Court of Canada decision, British Columbia (Public Service Employee Relations Commission) v. BCGSEU. That means proving the policy is adopted for a purpose rationally connected to the job performance; is necessary to fulfill the work-related purpose; and that it is impossible to accommodate the employee without imposing undue hardship upon the employer.
If an incident occurs, then the organization often has the justification to conduct a drug test on that specific employee, says Goodman.
Alcohol impairment can be easily verified through a breathalyzer test, as alcohol has only one intoxicant (namely ethanol or ethyl alcohol), which is linearly excreted once consumption begins.
Marijuana, on the other hand, comprises several different intoxicants, one of which is tetrahydrocannabinol (THC). When ingested, THC is immediately absorbed by fat cells and slowly released over time without, generally, contributing to intoxication. As such, marijuana impairment is harder to determine due to the lack of a reliable metric, notes information from HGExperts.com.
While drug testing methods over the last decade have become more accurate in pinpointing current impairment, results can still take weeks, unlike the immediate results offered by a breathalyzer, says Dave McKechnie, an employment and labour relations lawyer at McMillan LLP in Toronto.
“The employer would have to somehow have the technology to allow someone to be tested immediately before performing a task, and I think that’s where the stumbling block would come,” McKechnie suggests.
“Certain industries do have certain exceptions,” says Goodman, citing the nuclear sector as an example. It has “a far greater right to randomly test because the safety implications are so obviously huge that they overwhelm the traditional human rights to be free from random testing.”
Many Canadian transport companies that employ drivers who travel south of the border undergo mandatory drug testing as it is a legislative requirement in the United States.
“There’s always been an ongoing tension between what the Ontario Human Rights Code demands and what the Occupational Health Safety Act demands,” suggests Goodman. “The OH&S Act demands you must make your workplace safe, and doesn’t, to a degree, care how you do it, and the Ontario Human Rights Code says you cannot discriminate against people and as part of that, you cannot drug test.”
Human rights, personal privacy and oh&s do not have to be at odds, but should be seen as different objectives that an organization needs to meet, says Mark Rice, a safety specialist for oh&s policy at Alberta Employment and Immigration in Edmonton. That, however, requires due diligence on the part of the company, Rice notes.
By hiring an employee and allowing him or her to operate equipment, a company assumes the responsibility for that employee’s actions, Goodman says. It also has a duty to ensure that the employee is well-trained and will not endanger members of the public, he adds.
McKechnie cautions that “if, for example, you have an employee who comes in and smells of alcohol, blurry-eyed, is falling down, if you allow that person to get behind the wheel of a bus, you can be charged under the OH&S Act.”
But unlike alcohol, marijuana impairment may be more difficult to determine. “If there’s no presentation of any impairment, then the question is, would it have been reasonable for an employer or manager to say, ‘No, you can’t work?'”
Despite ongoing challenges, Goodman contends that organizations are likely to continue to push for the ability to institute a random alcohol and drug testing policy at the workplace.
Ross says that the TTC has been trying to have random testing added to the organization’s Fit for Duty policy because the current policy, which came into effect in 2010, has been ineffective at deterring workplace intoxication. That random component was rejected by the Board of Directors when it was tabled in 2008, he adds.
Organizations would also benefit from having in place a good support system and a conducive environment – not a culture of fear – to encourage employees with addiction issues to come forward and seek help, Goodman advises. “Otherwise, people will hide things.”