by Donna Burman
member of ATU Local 113
Random Testing was introduced by the Toronto Transit Commission (TTC) on May 8, 2017 as part of its Fitness for Duty policy. Currently, Amalgamated Transit Union (ATU) Local 113, which represents 11,000 TTC workers, has been in arbitration with the TTC over this matter. In recent months, TTC found the arbitration case was moving too slow and decided to implement random testing. The union sought an injunction but lost and is now currently grieving the injunction decision.
So where does that leave us?
It’s plain to see the TTC and Ontario government want random testing. In fact, the TTC will be asking the Ontario government to make random testing mandatory for public transit agencies.
The TTC’s position is that there is a significant problem with impairment as a threat to the safe operation of the TTC and to the public.
As far as the TTC is concerned, random testing not only reduces the risk of workplace accidents and injuries but it is also an effective deterrent and proactive in detecting issues before an accident.
Why the opposition?
On the surface, random testing looks great in attempting to address a significant issue. Yet under the surface lies the root of the problem: ATU Local 113 members oppose random testing because it is a violation of privacy rights and is a discriminatory policy.
The TTC has a ‘self-disclosure’ period in which every employee has the opportunity to disclose any medication that they are taking. This is referring to long term use of any medications with impairing side effects.
So, instead of looking for cannabis and other illegal drugs, TTC now wants ALL medications listed that are not only legal but prescribed by a medical professional. The employer wants to know about the complete medical background of each employee.
Hence, the policy discriminates based on an employee’s medical issues because the scope has been broadened to include every form of medication; medication that is considered private information between a medical professional and the employee.
Self-disclosure or discipline?
Under the Ontario Human Rights Code policy on alcohol and drug testing, random testing cannot be used to deter or monitor alcohol and/or drug use for moral reasons by the employer. Rather, random testing is used to strike an appropriate balance between safety-sensitive requirements and human rights. This means alcohol or drug issues are to be treated as a disability that the employer has a duty to accommodate.(1)
Yes, any employer can ask for reasonable medical information from any employee so that the proper accommodation can be made (if possible). That means that the employee has a reason to co-operate so that the accommodation occurs. When a random test occurs and there is found to be some impairment, any employer must accommodate the employee to the point of undue hardship. That means, the employer cannot discipline the employee for having a disability.
This sounds fair enough, except with TTC’s policy to ‘self-disclose’ now means discipline. If any employee has not self-disclosed any medication and a positive result occurs on a random test, they are now relieved of duty. If any employee refuses to be tested, again they are relieved of duty as a refusal is an omission of guilt.
Under the Ontario Human Rights Code, there is not to be any unnecessary and undue hardship on the employee otherwise it becomes grounds for discrimination. Yet TTCs’ mandate is to discipline.
It is easily understandable why TTC employees would oppose random testing. Even though there are clear guidelines set out by the OHRC, TTC has their own set of rules from the tools used in random testing to the consequences imposed from a negative result.
Save your job, lose your wages
TTC has argued that most offenders have kept their jobs so there isn’t any undue hardship on the employee. Between 2014 to 2016, there were 55 disciplinary incidents associated with the Fitness for Duty policy which Step 3 grievances were filed. Out of the 55, 43 resulted in the employee’s reinstatement to employment. Out of the 55 incidents, 37 involved employees who declared having a substance use disorder.(1)
What this does not disclose is lost wages through the process. Step 3 grievances are usually on or about 15 days or 3 weeks of lost time to any TTC employee. This is the reason why ATU Local 113 union has informed its members to currently comply with Random Testing while the case continues to be fought in the courts.
Is there actually a problem at the TTC?
For any random drug and alcohol test to be justified, an employer must demonstrate that the workplace is dangerous and establish that a general problem exists in that workplace.
Is the TTC random testing justified? TTC released its facts on this general problem before and after the Fitness for Duty policy was enacted when pre-screening testing was a term of employment and there was testing after an incident at work.
Before TTC provided that between January 1, 2006 and September 2008 (when the Fitness for Duty policy was approved) there were approximately 40 drug or alcohol-related incidents involving TTC employees.(2)
From October 2008 to October 2010 (implementation of policy), there were a further 53 drug or alcohol-related incidents involving TTC employees.(3)
After the Fitness for Duty policy in October 2010, pre-screening tests from 2010-2016 yielded a 2.4% positive test rate. Let’s assume that the ones with positive tests did not get hired. Between 2010 and 2016 a total of 45 incidents of impairment were detected in car houses, maintenance and so on.
There were 45 incidents over 6 years, that is on average 7.4 incidents per year. Percentage that is 0.0007% out of a working populace of 11,000 or 1 out of 1466 members detected signs of impairment from current policies and procedures.(4)
The numbers basically represent not a problem but rather abnormalities. ATU Local 113 members are not a significant problem like the TTC implies they are.
It all comes down to the question why? Why does TTC want Random Testing as a form of a legitimate safety?
1. Factum of the Respondent, pg. 32.
2. Factum of the Respondent, pg. 9
3. Factum of the Respondent, pg. 10
4. Factum of the Respondent, pg. 13