Canadian HR Reporter

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We're trying to go back in front of the arbitrator to ask the arbitrator to impose an injunction on the TTC to say that they cannot (implement the pro- gram) until the proceedings are concluded." If the arbitrator is unable or unwilling to grant the injunc- tion, said Kinnear, the union will pursue an injunction through the court system. In 2013, Canada's Supreme Court ruled that random drug and alcohol testing was not justified in the workplace unless the em- ployer could provide evidence of a substance abuse problem among the workforce. "e TTC just doesn't reflect that at all," said Kinnear. "is is negatively impacting employees. It casts an aspersion over employees. e company is moving forward in the way that it casts an aspersion over our employees to suggest that there's somehow some systemic drug and alcohol problem at the TTC, when it's just not the case." When the TTC originally moved to implement random drug and alcohol testing, the union proposed an alternative, said Kinnear. Because sleep depri- vation is a serious contributor to impairment in transit employees, the union hoped the TTC would introduce optical scanners in the workplace. Optical scanners would determine impairment but would not conclude whether that impairment was due to sleep deprivation or the use of drugs or alcohol. "We know in the transit indus- try that the most pressing impair- ment we face is sleep impairment or lack of sleep because of the hours we work, because of the shift work we do," said Kinnear. "Our operators are out there 12.5 hour a day, five days a week. e TTC didn't even sit down to talk with us about it. ey didn't entertain it in any way, shape or form." Random testing would in- fringe on employees' privacy, said Kinnear. TTC employees would be required to provide their em- ployer with medical information — such as any medication that could potentially alter testing re- sults — to the employer. Another concern for the union is the lack of access and information. "ere's no recourse for us as representatives of the employees," said Kinnear. "If the test comes back positive, that's it. So there's a lot of concern with how that test is being han- dled, how it's being conducted and what the conclusion of that test is." Steps required ere are several steps the TTC needs to take before imposing its policy, said Chelsea Rasmus- sen, an employment and labour associate at Dentons Canada in Toronto. "If the employer unilaterally introduces the policy under the management rights clause of the collective agreement, this could raise the issue that the policy is an unreasonable exercise of manage- ment rights, with unions often ar- guing because of the intrusion on the employees' right to privacy," she said. "We would suggest that em- ployers implement a confidential and secure process for the actual taking of the sample, testing the sample, returning the sample to the workplace and also for com- municating the results to the employee that had been tested." e TTC will need to ensure employees are fully aware they are subject to a random drug and alcohol testing policy, said Rasmussen. To justify the policy, the TTC would need to show it represents a proportionate response to the safety concerns of the workplace while also balancing the compet- ing interests of employee privacy, she said. "e testing should also be lim- ited to determining the actual im- pairment of the employee's ability to perform the essential duties of their safety-sensitive job, it shouldn't be directed toward sim- ply identifying the presence of drugs or alcohol in the body," said Rasmussen. As well, a comprehen- sive drug and alcohol test- ing policy should also include measures for accommodating employees struggling with addic- tion, she said. Currently, there is nothing pre- venting the transit commission from implementing the policy, said Rasmussen. However, if the arbitrator ulti- mately concludes the policy is not justified in the circumstances, the policy would likely be found in violation of the collective agree- ment and the employer would have to revisit the practice. "It's a big issue in human rights," said Rasmussen, "in both a unionized and non-unionized context." 'Confidential, secure process' required for testing TTC < pg. 1 "is is negatively impacting employees. It casts an aspersion."

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