Can they pee test me? In any discussion that I have concerning the legalization of cannabis, this is the question employees want answered. “Can I pee test them?” Is the question to which employers want answers.
In yet another case to look at the issue of random drug and alcohol tests, Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078 (CanLII), Associate Chief Justice of the Ontario Superior Court of Justice Frank Marrocco ruled that the TTC could continue its program of random testing pending the resolution of a labour grievance filed by the union.
The union and a union member had applied for an interlocutory injunction restraining implementation of random drug and alcohol testing of members of the Amalgamated Transit Union, Local 113 (“ATU”) until the completion of an arbitration hearing concerning the validity of the TTC’s drug and alcohol testing policy.
In September 2008, the TTC approved implementation of what it called a “Fitness for Duty Policy”. The policy did not take effect until October 17, 2010.
The purpose of the Fitness for Duty Policy is to “[e]nsure the health and safety of Commission employees and the safety of Commission customers and members of the public.”
The Policy intends to achieve this goal by requiring that TTC employees and senior management be mentally and physically fit to perform their assigned tasks without any limitations resulting from, among other things, the use or effects of drugs or alcohol. The Policy allows for the identification of individuals who create safety risks in the workplace due to drug or alcohol use and for the treatment and return to work of employees with substance abuse disorders. It also provides for disciplinary action against employees in defined circumstances.
The Fitness for Duty Policy, as implemented at the time of the hearing, provided for drug and alcohol testing of employees in safety sensitive, specified management and designated executive positions. The policy requires drug and alcohol testing in the following situations:
- where there is a reasonable cause to believe alcohol or drug use resulted in the employee being unfit for duty;
- as part of a full investigation into a significant work-related accident or incident;
- where an employee is returning to duty after violating the Fitness for Duty Policy;
- where an employee is returning to duty after treatment for drug or alcohol abuse; and
- as a final condition of appointment to a safety sensitive position.
The Fitness for Duty Policy did not initially provide for random drug and alcohol testing. However, when the Policy was introduced, the TTC advised the ATU that it reserved its right to implement random testing.
After the TTC announced its Fitness for Duty Policy but prior to it taking effect, the ATU filed a policy grievance under its Collective Agreement. In the normal course, the policy grievance was referred to arbitration, which started on March 8, 2011. Even though six years had elapsed, the arbitration was not completed. The ATU has not yet completed its case and the TTC’s case had not yet even started.
The ATU’s position before the Arbitrator is that the entire Fitness for Duty Policy is contrary to the Collective Agreement and the Ontario Human Rights Code, R.S.O. 1990, c. H.19.
On October 19, 2011, the TTC amended the Fitness for Duty Policy to require random drug and alcohol testing.
The TTC advised the ATU that random testing would apply to employees in safety-sensitive, specified management, senior management and designated executive positions including that of the Chief Executive Officer.
Employees randomly selected for testing would be subjected to an alcohol breathalyzer test and an oral fluid drug test.
Administration of breathalyzer tests and the collection of oral fluid samples would be carried out by qualified and trained technicians from DriverCheck Inc., a company that provides alcohol and drug testing services to more than 5000 employers in Canada; 3600 of whom rely on it for random drug and alcohol testing.
Selection for random testing would be facilitated by DriverCheck Inc. The selection rate of employees for random testing would be 20% per year; meaning that an employee eligible for random testing would have a chance of being tested once every five years.
Under the Fitness for Duty Policy, an alcohol test result of .04 blood alcohol concentration (BAC) or higher is classified as a positive alcohol test and constitutes a violation of the Policy. So, does a positive oral fluid drug test. A positive oral fluid drug test is one in which the laboratory analysis determines that the sample tested contains a drug at or above a specified cut-off level and the Medical Review Officer, following a review, reports that the drug test result was positive.
A failure to submit to a random test is a violation of the Policy.
A TTC employee testing positive will be in violation of the Policy and considered unfit for duty.
Oral fluid drug testing results are not immediately available, so the Policy provides that employees will return to work after testing, so long as their breathalyzer test result is less than 0.02 BAC. Employees who have an alcohol test result between .02 and .039 BAC will be removed from duty until it is safe for them to return to work and will be subject to progressive discipline.
The policy provides oral fluid drug test cut off levels as follows:
- marijuana 10 ng/mL (nanograms per milliliter);
- cocaine 50 ng/mL;
- opiates 50 ng/mL;
- acetylmorphine 4 ng/mL;
- phencyclidine 10 ng/mL; and
- amphetamines 50 ng/mL.
Justice Marrocco noted that, whether the experts completely agree on this point or not, the evidence established to his satisfaction that the substances covered by the TTC Fitness for Duty Policy can impair the psychomotor and cognitive abilities of persons under the influence of those drugs.
Finally, Justice Marrocco further noted that the TTC oral fluid drug cut-off levels are higher than those currently proposed for the same drugs in the draft Mandatory Guidelines for Federal Workplace Drug Testing Programs by the U.S. Substance Abuse and Mental Health Services Administration (SAMHSA Guidelines). For example, a TTC employee would test positive and therefore be unfit for duty with an oral fluid concentration of cocaine at or above 50 ng/mL.; a TTC employee with an oral fluid concentration of cocaine less than 50 ng/mL will test negative and be considered fit for duty. Under SAMHSA Guidelines, an employee will be unfit for duty at an 8 ng/mL oral fluid cocaine concentration.
Although it appears at paragraph 98 of Justice Marrocco’s reasons for decision, the following statement crystalizes the issue that was before the court:
It is important, before proceeding further, to emphasize what could easily be forgotten. The applicants and the respondent agree on the importance of public safety; they disagree on the importance of random testing in achieving the TTC’s public safety goals.
The first question the court had to answer on the injunction application was whether the union would suffer “irreparable harm” if the injunction was not granted. Justice Marrocco found that they would not, which was dispositive of the motion. In making such a decision and in describing the contextual circumstances surrounding the TTC’s decision to implement a random testing policy, Justice Marrocco made the following observations:
 First, external candidates interested in working for the TTC in a safety sensitive or designated management or executive position must pass a pre-employment urinalysis test for drug use.
 I am satisfied that a reasonable person would assume that if he or she had to test negatively for drugs and alcohol to get a job with the TTC, then he or she would be required to continue to test negatively for drugs and alcohol to keep that job with the TTC.
 I am satisfied that the negative attitude of TTC’s employees towards working with individuals who test positive for alcohol or drugs, as described by Mr. DiNino, is one of the circumstances surrounding the respondent’s decision to institute random drug and alcohol testing. Accordingly, I am satisfied that TTC management and its employees, both of whom assist people in making approximately 1.8 million journeys on the TTC’s subway, buses and streetcars every day, expect that steps will be taken to make sure that those in safety critical positions are fit for duty. This safety concern will reasonably diminish their expectation of privacy concerning their drug and alcohol consumption.
 … the nature of the workplace is also part of the circumstances surrounding the respondent’s decision to institute random drug and alcohol testing. In Irving Pulp and Paper the workplace was a pulp and paper mill. In this case the workplace includes the subway, buses and streetcars that travel throughout the city. The workplace genuinely is Toronto itself.
 The Policy has a treatment component. … the TTC retained IWS [Integrated Workplace Solutions] to provide substance abuse professional services to support the Fitness for Duty Policy. Mr. Gardiner indicated that IWS would continue to provide the services following implementation of random drug and alcohol testing. Pursuant to its agreement with the TTC, IWS substance abuse assessments are provided by physicians specializing in addiction medicine. Mr. Gardiner indicated that the TTC can refer an employee for an assessment following a violation of the Fitness for Duty Policy, a positive drug or alcohol test result, or an employee’s voluntarily declaration of a substance use problem. Disclosure of any recommendations made to the employee by the substance abuse professional can only occur with the employee’s consent.
 I am satisfied that the nature of the Fitness for Duty Policy is not only disciplinary but also remedial. I am also satisfied that employees have some degree of control over the information collected and generated under the policy and that there is accountability for the information collected.
 In short, I am satisfied that the Fitness for Duty Policy is reasonably tailored to its stated health and safety purpose.
In ultimately rejecting the application for an injunction to prevent the random drug and alcohol testing, Justice Marrocco wrote:
 After considering all the evidence, including the evidence to which I have referred, I am satisfied that, if random testing proceeds, I 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 test result is known or deterred by the prospect of being randomly tested.
 This will increase public safety.
 To the extent that refusing the injunction results in, if the applicants are ultimately successful at the arbitration, an invasion of an employee’s reasonable expectation of privacy, the person concerned can be compensated with damages.
 Accordingly, I am satisfied on the evidence that the balance of convenience favours the respondent on this motion and I would have refused this motion on that basis.
The application for the injunction was dismissed, meaning that the TTC was permitted to continue its random testing. The parties had agreed that costs in the amount of $100,000 would be reasonable; Justice Marrocco agreed.
The first thing to observe with respect to this case is that, according to media reportsb, about 2% of 1,269 employees tested in the first six months of testing tested positive for drugs or alcohol. Of those, half tested positive for cannabis. Five employees failed the test due to alcohol and 17 failed for various drugs.
The second thing to observe is that a different approach was taken by the Alberta court. In Unifor, Local 707A v Suncor Energy Inc, 2017 ABQB 752, Mr. Justice R. Paul Belzil of the Alberta Court of Queen’s Bench granted an Injunction prohibiting Suncor Energy Inc. from implementing a policy of random drug and alcohol testing at its mine site north of Fort McMurray, Alberta.
One most also be mindful of the decision of the Supreme Court of Canada in Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII), about which I blogged in my post Supreme Court Upholds Termination for Violation of Anti-Drug Policy.
Finally, with the impending legalization of cannabis one cannot help but believe that the issue of random drug testing will be the issue of employment law for the next decade. Absent extraordinarily clear guidance from either the legislature or the Supreme Court, litigation seems inevitable.
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Photo Credit: (c) istock/milla1974