According to recent news reports, the Toronto Transit Corporation has been trying to implement random drug and alcohol testing for its employees since 2011. TTC CEO Andy Byford is right about one thing: this type of testing takes place in many workplace and seems to be common south of the border. But, here in Toronto, the Amalgamated Transit Union is fighting the policy. Is it legal? If so, when can an employer make a worker take a test?
UNIONIZED EMPLOYEES’ RIGHTS
In 2013, a majority of the Supreme Court of Canada rejected random drug and alcohol testing in an appeal of an arbitration decision that found that Irving Pulp & Paper Limited was not entitled to unilaterally impose random alcohol testing of its workforce. At Irving, 10% of employees in certain safety-sensitive positions were subjected to random breathalyser tests each year. Employees who tested positive could be disciplined or dismissed. Employees who refused to take part were fired.
This decision affirmed what Canadian arbitration decisions have been saying for years. Even in a safety-sensitive workplace the harm of a random drug or alcohol testing policy normally outweighs its benefits. Randomized testing invades many employees’ privacy and causes injury to workers’ dignity based on the mere chance that substance use may be detected or deterred. Employers are expected to react proportionately to safety risks and arbitrators have to balance the interests of employers against the interests of their employees.
For these reasons, arbitrators might sometimes permit drug or alcohol tests of unionized workers employed in a dangerous workplace. For example, it may be appropriate for an employer to ask an worker to undergo testing if they have a good reason to think that person is working under the influence or as part of an agreement to return an employee to work after treatment for an addiction that affected their performance. The Supreme Court left the door open for random testing in dangerous workplaces with a demonstrated, generalized substance-abuse problem or where the employer and the union had expressly negotiated such a policy.
NON-UNIONIZED EMPLOYEES’ RIGHTS
Thankfully, workers may not need a union to be protected from random drug and alcohol testing. While non-unionized employees don’t have recourse to the type of collective agreement provisions that guided the Court in Irving, they may be able to rely on the Ontario Human Rights Code or their privacy rights when taking a stand against drug or alcohol testing at work.
In Ontario, random drug and alcohol testing has been found to be a form of discrimination on the basis of disability which constitutes a violation of the Human Rights Code unless an employer can prove that its testing regime is a true occupational requirement in its workplace. However, workers who use drugs or alcohol casually may have difficulty proving discrimination based on disability. While Canadian courts and tribunals accept that addiction is a disability, recreational drug use is not.
At the same time, the Ontario Superior Court has taken a strong stance on random alcohol testing based on arguments that this type of policy is a breach of the Canadian Charter of Rights and Freedoms. In a recent decision, the Court considered whether a Toronto area school had violated its students’ Charter rights when it forced them to take a breathalyser test before they could attend their high school prom. In addition to finding that the students were subjected to tests without their consent, the Court found that the school’s policy breached the students’ constitutional right to privacy. In its decision, the Court noted that a breath sample can reveal information about a person’s lifestyle and personal choices and the process can be very intrusive, as well as potentially demeaning. In this case, the judge agreed that students’ alcohol use posed health and safety risks. However, the school had no reasonable basis for its belief that its rules were being broken or that it needed to take such extreme measures.
It remains to be seen how the Court’s recent decision will apply to workers, but the case law is clear: an employer has a high standard to meet if it wants to impose a policy of random drug or alcohol testing in its ranks.
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.,  2 SCR 458, 2013 SCC 34 (CanLII)
Mechanical Contractors Association Sarnia, 2013 CanLII 54951 (ON LA)
Luka v. Lockerbie & Hole Inc., 2008 AHRC 1 (CanLII)
Simon Gillies et al v. Toronto District School Board, 2015 ONSC 1038 (CanLII)
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