By Donna Burman
The count is now raised to eight positive test results as random drug and alcohol testing heads into its third month at the Toronto Transit Commission (TTC). Recent court decisions have determined that testing is non-evasive as clearly seen in the loss of appeal for the injunction filed by Amalgamated Transit Union (ATU) Local 113 and self-disclosure workplace policies are not discriminatory as seen in Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII). These decisions will make the fight more challenging as ATU Local 113 one of the unions representing TTC employees, continue to fight with TTC through arbitration. The impact on the Canadian labour movement will be widespread as legal precedents from cases before the courts could be used across the country. What will be the next step as ATU Local 113 continues the arbitration case?
October 2010 saw the implementation by TTC for the Fit For Duty Policy. This policy was later amended to include random alcohol and drug testing. Both ATU Local 113 and the TTC have fought over the Fit For Duty policy and this battle is now before the courts in arbitration since 2011. In 2016, ATU Local 113 filed an injunction to stop random drug and alcohol testing but it what seen as non-evasive and dismissed in April 2017. The union filed an appeal against this decision yet the judge cited the same arguments in the original decision and was dismissed on June 30, 2017.
Eight positive tests to date
The TTC recently released statistics on random drug and alcohol testing with its CEO report. This report covered the month of May and the first twenty days of June 2017 (testing did not start until May 8, 2017).
As of June 20, 2017, a total of 291 tests performed on TTC employees in safety sensitive positions with seven positive tests. The month of May had a total of 152 tests with five positive tests while the first twenty days of June had 139 with two positive results. Seven tests were performed per day on average. Since the release of the report, one more positive test result has occurred to a union member taking the total to eight.
The number of positive test results are low and do not signify a general problem within the TTC as a whole. Even though eight positive test results have been determined by TTC standards, this does not suggest that the person was indeed impaired at the time. The Ministry of Transportation (MTO) guidelines for alcohol legal impairment levels are much higher than TTC’s threshold. Currently, the MTO legal alcohol level of impairment is 0.08 BAC while TTC has it set at 0.04 BAC. So it will be interesting if these standards by TTC actually hold in court and if they don’t, what compensations would incur.
The significance of the appeal loss
On June 30, 2017 in a decision by J. Nordheimer, the dismissed appeal for the injunction as it was reasonable to have workplace policies on random drug and alcohol testing. Nordheimer sided with Justice Marrocco in their decision in that this workplace policy on random testing was not evasive on the employees citing reasonable testing procedures beneficial for public safety. Unfortunately for the union, this judgement will set legal precedent for the ongoing arbitration case as public safety interests are at the root of the matter. The decision by Marrocco in Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078 injunction will stand.
In this judgement, Marrocco found it reasonable that random drug and alcohol testing would advance public safety. Important arguments from Marrocco’s decision are all based on a level of reasonableness in the interests of public safety which include:
- since the employer (TTC) engages in pre-employment testing, it is reasonable for the employee to expect further negative testing to keep up employment
- is reasonable to expect that efforts would be undertaken to make sure safety sensitive workers are fit for duty given that TTC has about 1.8 million daily riders
- risk of false positives are combated with testing procedures and can be compensated by damages[i]
Marrocco’s arguments essentially stating that random alcohol and drug testing are non-evasive and reasonable are possible grounds to rule on ATU Local 113’s ongoing arbitration case.
Court finds workplace drug and alcohol policies are not discriminatory
On June 15, 2017, the Supreme Court of Canada dismissed an appeal in Stewart v. Elk Valley Coal Corp., 2017 SCC 30. An Alberta worker was fired after testing positive for drug use from a post-incident. What is significant is that company didn’t fire the employee for the addiction but for breaching employer’s drug policy to self-report his drug use. The court determined that the fired employee was for breaching company’s drug policy and not because of his addiction.
In short, any workplace policy that requires the disclosure of alcohol and/or drug dependency or addiction related issues will not result in a finding of discrimination. Rather workplace policies that need self-disclosure by any employee are not only enforceable but are reasonable grounds for termination. The legal principle from Stewart v. Elk Valley Coal Corp., will apply across Canada. Now workplace policies including TTC’s Fit For Duty are enforceable. What is considered as discriminatory as it applies to drug and alcohol use is clearly laid out as a breach of workplace policy.
TTC’s policy on self-disclosure
TTC has included self-disclosure as part of its’ Fit For Duty Policy
Employees are:
- not required to report the specific medication in question
- required to know the side effects of any prescription medication prescribed to you or the underlining medical condition that you need the medication for
- expected to report the use of any medication that may negatively affect your performance or fitness for duty to Occupational Health
- expected to tell Occupational Health or your supervisor of any need for modified duties associated with medication use[ii]
Clearly, this policy is not only enforceable but has the potential to end employment in a non-discriminatory way.
What is the next step?
With ATU’s Local 113 arbitration case now ongoing, this decision will be very interesting to say the least. With the low numbers of positive test results would prove to help the union even though the first employee tested came back as a positive test. The union can stop its current arbitration case or continue with a new one based on the effects of the policy.
ATU Local 113 members will be entering into their last year of its collective bargaining agreement. New negotiations will begin as the collective bargaining agreement will come due. The union can negotiate the Fit For Duty Policy. Even though ATU members are an essential service under Bill-150, that bill has reached its five year renewal mark and is open again to review and even its end. Additionally, Marracco in Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078 made some clear points in that employees proven to have a false positive test would result in compensation. Additionally, if ATU Local 113 were to win the arbitration case, the union would receive compensation from damages. What specifically would be the compensation is not yet determined.
It will be interesting how ATU Local 113’s arbitration case will play out now that the appeal has been lost and with the case decision in Stewart v. Elk Valley Coal Corp. where a breach of a workplace self-disclosure policy is enforceable and grounds for termination. ATU members will start contract negotiations for a new collective bargaining agreement as the current one runs into its final year. Clearly, the ramifications will be felt across the country and ATU Local 113 has a challenging fight on their hands as the growing trend support public safety measures. Yet this will be a landmark win for ATU Local 113 for the compensation towards the invasion of privacy and proven false positive tests has yet to be determined.
[1] What is defined as a “false” has not been determined. As TTC has made their own limits not based on MTO standards, it will be interesting to see how these “false” positives are defined and argued in court. [1] TTC handbook Random Alcohol and Drug Testing, 2017