It has been just over one month since the Toronto Transit Commission (TTC) implemented random testing in safety sensitive positions. In that time, five employees have tested positive for alcohol or drug impairment. This pro-active approach seemed to stop impairment before safety is impacted. However, does it establish a significant problem within the workforce?
Many points brought forth from the Factum of the Respondent presented by TTC relied on the outcome of an incident that involved impairment. In most cases, this involved contact whether a bus to pedestrian contact or bus to vehicle contact. The outcome clearly demonstrated a concern for safety from the effects of impairment on duty.
Recent cases examined in the Factum of the Respondent included post incident circumstances involving operators of vehicles. In one example, one operator tested positive post incident after a pedestrian was struck by a bus.
Positive Test Results
Since the start of random testing on May 8, 2017, there have been a total of five positive test results. Each week approximately 40-50 employees are tested in safety sensitive positions including supervisors and other non-union members.
Since the implementation, approximately 200-240 individuals have been tested with a percentage rate of 2 to 2.5% that tested positive.
Out of the five individuals that tested positive, one was a supervisor. Outside of the positive test results, not much else is known including if any disciplinary action has been taken against these employees.
While in each case, the positive test result demonstrated impairment, the end result was not demonstrated including any issue while conducting their job or the level of impairment. In other words, there wasn’t any significant consequence.
At this point of time, none of the five that tested positive were a driver or vehicle operator. The employer’s Factum of the Respondent was based on consequences from post-incident occurrences. At this time, this argument cannot be elaborated or extended as evidence supports that the employees come to work fit for duty.
Where Does This Leave us?
On average, the numbers that have tested positive fall below normal standards of other companies that implemented random testing. The average is often 5% or more with a significant drop to 1% by the end of the first full year. We sit at 2 to 2.5% currently.
Often any employer is surprised by the number of employees that test positive. Those numbers are often higher than originally predicted.
A Drug Free Workplace
For any random testing policy to effectively deter or reduce drug use in any company, it is encouraged to test approximately 50% of the workplace on an annual basis. Numbers that fall below that do not cause a reduction in drug or alcohol issues in the workplace. In fact, anything less often has minimal impact.
According to the United States Department of Transportation, the annual minimum drug and alcohol random testing rates for 2017 for Federal Transit Administration (FTA) is 25% for Random Drug Testing and 10% for Random Alcohol Testing Rate. At no time can any US transit agency fall below these minimal requirements for compliance.
How random is not random
The TTC is willing to test only 20% on an annual basis. The testing is conducted at any point of time and on a regular basis. If an employee becomes selected, their name is removed from the pool. All TTC safety sensitive employees will be tested within the next five years.
According to the US government, if any employee is selected, their name gets thrown back into the ‘pool’ to ensure that the testing remains not only random but that it effectively sets out what it is required. For any Random Testing to maintain its effectiveness to stop impairment at work, the testing must be consistent, unpredictable (to provide the illusion it can happen at any moment of time) and it must be random otherwise the employee will believe that once tested, they will not be selected for another period of time.
Some employers will have open periods of testing such as once every three months while others will conduct it on a regular basis. But it is completely random and the employers must ensure that it remains random. Under US Federal regulations, the onus is on the employer to prove to the government that any testing remains random. With TTC how does it remain random if any employee’s name is removed once tested?
Other procedures encouraged by the US government for an impairment free working environment include any employer to hold informational seminars, hand out information including the pamphlets to mail out and posting information in the workplace. This information must be clear and always present and made in such a way that it is easily identified and read by the employees. This information must include what is expected from the employee including a list of forbidden or restricted medications and information that includes the limitations to its usage.
What has been established is that the employer wants better control over the medications any employee has taken. Any clear guidelines have not been properly established at this time while random testing has taken place. Employee discipline has the potential to be used against employees for failure of disclose. Yet what remains unclear are any guidelines. Testing is not as random as TTC clearly wants all employees tested, just not randomly tested.
At this point, the employer has completed some of these procedures. Pamphlets were mailed out to TTC employees while the rest has not been clearly disclosed. The testing requirements fall short of US regulations and it is not random. Clearly the effectiveness of implementing random testing to reduce impairment at work is open to speculation and review.
A drug and alcohol free working environment would be beneficial to the company in many ways. Most often it would impact the employer’s liability as it would generally decrease. Benefits from random testing for any employer include a reduction in lost time, sick benefit claims and sick time, theft and damage in the workplace, WSIB injuries and claims, number of WSIB decrease as would premiums injuries and other insurance including liability from contact collisions.
Union Says no general issue with workers
Kevin Morton, secretary-treasurer of Amalgamated Transit Union (ATU) Local 113 has been reported to have stated that “we believe that it is not a systemic issue” and “the vast majority of our employees are hard working employees who do not…violate policy”. The union has continued to fight random testing in the courts.
At this time, the positive test rate is holding at or about 2 to 2.5% for the TTC. These rates will decrease as the US trend from employers whom have enacted random testing have shown a significant drop within the first year. As such, how can random testing be justified or effective in a drug free workplace?