To Test or Not to Test?

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With the upcoming legalization of marijuana in Canada, the increasing use of opioids, and the pervasive use of alcohol in our society, Canadian employers are intent on doing their due diligence to ensure workers are not impaired at work.

HR practitioners must keep abreast of changes happening in the Canadian employment-law arena. This is easier said than done—nothing is more confusing, or changing more rapidly, than rulings around the employer’s right to test employees for drugs and alcohol. Drug testing, workplace safety, and employee rights have been in at the centre of a number of legal battles for many years.

There are two competing principles in play in an ongoing legal battle between Suncor Energy and Unifor, the union that represents many of Suncor’s employees. Suncor believes it has a legal safety obligation to test employees for drugs and alcohol, saying that they have had 2200 safety incidents involving drugs and alcohol.

Suncor certainly does have a legal and moral duty to ensure the workplace is safe and free of hazards, including impaired employees. However, the union’s position, which is also valid, is that employees have the right to privacy, and that random drug testing violates that right.

Suncor won a September 2017 ruling that allows them to test employees for drugs and alcohol randomly.

Click here to learn more about the Suncor case.

However, in December 2017, just over two months after the ruling in Suncor’s favour, an Alberta Judge placed a temporary injunction preventing Suncor from carrying out random drug testingz

So, where do we stand on random drug testing in Canada now? It is very unclear. Currently, in Alberta, employers don’t seem to have the right to use random drug testing, even for safety-sensitive jobs. The story is different in Ontario, however, with the Ontario Superior Court ruling that random drug testing is legal.

Ontario Associate Chief Justice Frank Marrocco declared, in his decision concerning the Toronto Transit Commission, that, “public safety outweighs privacy concerns.”

Click here to read more about Chief Justice Marrocco’s decision.

So, there you have it, HR Professionals — there is no clear answer to the question concerning the conflict between rights of the employer   against the rights of the employee. What is the HR Professional to do, you ask? Stay aware, stay concerned, and keep up to date on employment court rulings.  These ruling can change rapidly.


Discussion Question:

Research policies in Canadian workplace and analyze them with respect to drug and alcohol testing. Is it a workplace requirement? When can the employer ask for drug/alcohol testing? Do any policies have a requirement for random drug and alcohol testing?

Testing Times

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In the spring of 2017, the Toronto Transit Commission (TTC) was finally successful in implementing random drug and alcohol testing for its employees. This initiative came into play as a result of a six year process of protracted labour relations and legal wrangling over the implementation of a fitness for duty policy that seeks to improve workplace safety.

Click here to read the court’s approval for testing as announced by the TTC.

It is not surprising that the Amalgamated Transit Union Local 113, or any union, would be opposed to the implementation of random drug and/or alcohol testing in the workplace. In Canada, as employees, we generally enjoy a certain level of personal privacy and restrictions on potentially invasive procedures in the workplace. Any worker would expect to have these restrictions and rights reinforced by their union that fought hard and won these work related rights years ago.

In this case, however, the potential safety rights of the public seem to have provided a tipping point that moved this case out of the courts and into the public domain. Once implemented, the TTC’s drug and alcohol testing program provided immediate results. On the first day of random testing, two workers were found to be impaired and on the job, which would seem to justify the need for the program from the perspective of customer and public safety. As the program has continued, the findings of employees testing positive for drug and/or alcohol use have also continued. Most recently, a vehicle operator failed the drug test, raising the safety concerns again for both the workplace and for the public who find themselves potentially at risk as a result of an individual’s alleged actions.

Click here to read and see news coverage on the TTC vehicle operator who failed the drug test.

The process that is described in the media focuses on the key messages of employee disciplinary action in order to ensure public safety. Of course, as members of the public, we need to be assured that no-one is put in harm’s way when using public transit.

As Human Resources practitioners, however, we know that these matters are not so simple. In this puzzle over whose rights must be protected, where does the duty to accommodate come into play? Does the need to ensure public safety override the employer’s obligations under the human rights code? Does a failed drug test mean the end of employment for any employee?

Each of these questions needs a thoughtful response from a Human Resources perspective. Hopefully, you will have had lots of time to think about them the next time you exit safely from that bus.

Discussion Questions:

  1. From an HR perspective, what issues come to mind for you as you read and watch the news articles linked to drug testing at the TTC?
  2. Are these issues different from your perspective as a customer of public transit?
  3. If you worked at the TTC as an HR practitioner and were selected to be tested for drug and alcohol use, how would you respond?