RANDOM DRUG & ALCOHOL TESTING AT WORK: IS THE TTC ON THE RIGHT TRACK?

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.

DECISIONS DISCUSSED:

Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., [2013] 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)

This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.

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After Johnstone: Family Status Discrimination in Ontario

With Family Day just around the corner, many Ontarians are planning to spend some extra quality time with their loved ones this weekend. But, apart from a day off for those workers who fall under the Employment Standards Act, 2000’s protections, what rights do people with families have at work?

The Ontario Human Rights Code bans unequal treatment and harassment against workers on the basis of their “marital status” and “family status.” Until recently the law did not seem to give workers a clear idea of what this protection means. For example, while most people agreed that the law clearly bars employers from refusing to hire (or deciding to fire) someone because they have children, it was less clear how much an employer needed to accommodate a worker’s childcare obligations in the workplace.

Recent Family Status Cases
This spring, the Federal Court of Appeal decided two cases about family status. In both cases, mothers claimed that their employers had discriminated against them on the basis of their family status by refusing to provide them with schedules that would permit them to meet their childcare needs. The women worked irregular hours that changed from week to week, making it hard to coordinate childcare with their other family members and childcare providers.

In Johnstone , the Court set out the following test for determining whether a “prima facie” (“on the face of it”) claim of family status discrimination could be established in cases dealing with child care:

1. Is a child is under your supervision?

2. Is your childcare obligation based on your legal responsibilities and not your choices?

3. Have you made reasonable efforts but been unable to meet your obligations though “reasonable alternative solutions”?

4. Do your workplace rules interfere with your obligations “in a manner that is more than trivial or insubstantial”?

So far, Ontario decision makers have released only two final decisions applying Johnstone to claims of family status discrimination at work.

In Partridge v Botony Dental Corporation, a case decided by the Ontario Superior Court of Justice this year, Justice Healey dealt with a mother’s claim that she was wrongfully dismissed by her employer. When she left on her maternity leave, the plaintiff had been working as an office manager for over three years. However, when she returned to work, her employer demoted her to her former job as a dental hygienist and changed her hours, so that they conflicted with her daycare arrangements. When the plaintiff complained, her employer fired her.

The Court rejected the employer’s argument that it had a good reason for firing the plaintiff. Instead, the Court found that the plaintiff had been wrongfully dismissed after her maternity leave and that her employer had discriminated against her on the basis of family status. In this case, the plaintiff was trying to meet her legal obligation to ensure that her children were properly cared for while she was at work. In order to do so, she sent her children to daycare and sought the help of her spouse, her extended family and a neighbour. In contrast, the employer could not show that its changes to the plaintiff’s schedule were really required for the performance of the job. The Court ordered the employer to pay 12 months’ notice as well as $20,000 in human rights damages.

In a second case Janice Wing, a municipal councillor whose duties included sitting as a member of a board of directors, complained that being required to attend board meetings at 3:30pm was discriminatory because it interfered with her parental obligations. Ms. Wing could not attend the meetings at that time because she had to pick her daughter up after school and then take her to swimming lessons. In exchanges between Ms. Wing and the President of the Board, Ms. Wing suggested she might be able to bring her daughter to meetings and the President offered to permit her to attend by phone instead. The Board ultimately changed its meeting time to 4:00pm.

In this case, the Tribunal adopted the Court’s decision in Johnstone, and found that the Board had not discriminated against Ms. Wing. The Tribunal considered Ms. Wing’s allegations even though it determined that members of corporate boards were not employees so she could not have been a victim of workplace discrimination, as she claimed. Importantly, Ms. Wing chose not to put her child in after school care and did not seem to have made any efforts to find alternatives. In addition, the Tribunal found that Ms. Wing missed meetings for other reasons and that her concerns were based on a potential future conflict between her family obligations and the meetings, not an actual conflict.

Conclusions
For many working parents, unpredictable shifts and long hours are an inescapable reality. It remains to be seen whether Johnstone will cause employers to re-think the way they schedule workers and structure their businesses. The impact of these decisions will likely depend on how legal decision makers define a parent’s “obligations” as compared to their “choices” and what counts as a reasonable effort to find alternative childcare.

DECISIONS DISCUSSED:

Canada (Attorney General) v Johnstone, 2014 FCA 110 (CanLII)

Canadian National Railway Company v Seeley, 2014 FCA 111 (CanLII)

Partridge v Botony Dental Corporation, 2015 ONSC 343 (CanLII)

Wing v Niagara Falls Hydro Holding Corporation, 2014 HRTO 1472 (CanLII)

This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.

COMMENTING POLICY: Comments may be subject to moderation. Commenters should refrain from using offensive or discriminatory language and from disclosing any personal or potentially privileged information.

Co-Worker Held Responsible for Workplace Sexual Assault

Workplace sexual harassment happens when your employer, an agent of your employer or a fellow employee harasses you on the basis of your sex or gender at work by engaging in a pattern of conduct that he knows or ought to know is unwelcome. Sometimes this means that a single comment or one instance of sexist behaviour, while inappropriate, won’t be considered sexual harassment. However, it is possible that a single incident, like a sexual assault, can be so serious that it amounts to sexual harassment on its own. Often, employees seek to hold their employers responsible for sexual harassment at work because it’s an employer’s responsibility to provide every worker with a safe workplace that is free from harassment and discrimination.

CK v HS, 2014

In one recent Human Rights Tribunal of Ontario case, the Tribunal held an individual liable for his sexual assault of a co-worker in the workplace but did not find that the employer had breached its obligation to “take reasonable action to address complaints of harassment or discrimination.”

In this case, the woman was a very new employee who had only recently returned to the workforce after some personal health issues. In the course of her workplace orientation, the assailant first touched the woman’s thigh and tried to touch her ribs, but she told him to stop. Shortly thereafter, his behaviour escalated. In a single incident, he revealed himself to the woman, forced her to touch him sexually and groped her. The woman was shocked and humiliated by the assault. She quit shortly after the incident and started looking for a new job, but she continued to be anxious at the prospect of working alone or with men and did not find new work for a few months. The man was convicted of sexual assault at criminal court before the human rights hearing took place.

The Tribunal called the man’s actions a “blatant and egregious sexual advance,” noting that the victim faced financial difficulties after quitting her job and, at the time of her hearing, the woman was still experiencing significant medical and psychological harm.

Nonetheless, the Tribunal dismissed the woman’s claim against her former employer. In the Tribunal’s view, the employer took reasonable action when he encouraged the woman to contact police and provided her with time-off before her resignation. The employer accepted the woman’s resignation but kept her position available for a number of months.

Instead, the Tribunal ordered the assailant to pay his victim $45,000 for “injury to dignity, feelings and self-respect” as well as $6,760 in compensation for lost wages.

DECISIONS DISCUSSED:

C.K. v. H.S., 2014 HRTO 1652 (CanLII)

C.K. v. C[…] Inc., 2014 HRTO 572 (CanLII)

This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.

COMMENTING POLICY: Comments may be subject to moderation. Commenters should refrain from using offensive or discriminatory language and from disclosing any personal or potentially privileged information.