Canadian HR Reporter

CANADIAN HR REPORTER June 12, 2017 12 NEWS • As a final condition of employ- ment in safety-sensitive positions. e union for TTC employees alleged the policy was contrary to the collective agreement and Hu- man Rights Code of Ontario. A grievance was brought to arbitra- tion (which is still ongoing). In October 2011, in response to a culture of drug and alcohol use at some of its locations, the TTC announced its intention to expand the policy to include random drug and alcohol testing of employees in safety-sensitive and specified management/executive positions. e union brought a motion for an interlocutory injunction preventing the TTC from imple- menting the program pending a final determination of the issue through the arbitration. e par- ty requesting the injunction must demonstrate three things: • ere is a serious issue to be tried. • If the injunction is not granted, the party (in this case, the union) will incur irreparable harm that cannot be compensated in mon- etary damages. • e balance of convenience fa- vours granting the relief, taking into account the public interest. In refusing the injunction, the court responded to the three is- sues as follows: • Yes, there is a serious issue to be tried. • No, the union will not suffer ir- reparable harm if the injunction is not granted. If the policy, or its random component, is found to contravene the collective agree- ment or Human Rights Code, the law of Ontario provides for the payment of monetary damages to those employees who have been wronged. • No, the balance of convenience does not favour granting the in- junction. If random testing pro- ceeds, it will increase the likeli- hood an employee in a safety- sensitive position, prone to us- ing drugs or alcohol, too close in time to coming to work, will either be detected or deterred by the prospect of being detected. is will enhance public safety. e court commented favour- ably on aspects of the policy de- signed to address historic concerns with testing, including methods, the impact on privacy and human rights, and the stigma of being selected. e court also accepted scientific evidence advanced by the TTC to support and underscore the necessity and reasonableness of random testing. Specifically: Reasonable grounds • ere is a culture of drug and alcohol use at the TTC. is is factually different from Irving Pulp and Paper in which the ar- bitration board concluded the employer exceeded the scope of its management rights under a collective agreement by im- posing random alcohol testing in the absence of evidence of a workplace problem. • It is very likely a worker with a substance use disorder will report to work in an impaired condition. • Many cases of drug and alcohol- related activity among TTC em- ployees at work go undetected and unverified due to difficulties in detecting drug and alcohol misconduct. • Between 2010 and 2016, about 2.4 per cent of external appli- cants — who knew they would be tested for drugs — nevertheless returned a positive test. • Statistically, random workplace testing results in a significant de- cline in the rate of positive drug tests of employees. Reasonable expectation • An external candidate interested in working for the TTC in a safety- sensitive position must pass a pre-employment urinalysis test for drug use. Hence, the idea of ongoing testing should be a rea- sonable expectation. • e TTC distributed comprehen- sive information to all workers about the policy and intention to implement random testing. Minimal intrusion into privacy • A breathalyzer measures a per- son's breath alcohol level at the time of the test; it is not invasive and does not reveal other per- sonal information. • A positive test result would be fol- lowed by a review with a medical review officer who would discuss the results with the employee to determine if there was a legiti- mate, medical explanation. If so, the officer would have the discre- tion to report the test as negative. • General stigma and psychologi- cal and reputational damage, as a result of being tested, is unlikely given that 20 per cent of employ- ees would be randomly tested each year. Reliability of results • reshold levels for a positive test would be higher than in other internationally recognized pro- grams, ensuring a greater likeli- hood of impairment at the time of testing based on recent drug use, and minimizing intrusion into an employee's life choices by screen- ing out results that detect previ- ous drug use unlikely to amount to impairment at the time. • Oral fluid testing gives a better indication of recent use and like- ly impairment than urinalysis. • ere's less chance of a false-pos- itive due to second-hand smoke. By denying the injunction, the court permitted the TTC to im- plement random testing pending the outcome of the arbitration and, so far, it would appear the court got it right; of the first group of employees randomly tested, two of eight failed the test. What does this mean for employers? e court's decision did not de- termine the permissibility of the TTC's testing protocol; this will be decided in the arbitration. How- ever, it does provide insight into the analysis a court may undertake when assessing a testing program. An effective and defensible pol- icy must be tailored to the work- place and appropriately address important factual and legal con- siderations. At a minimum, an em- ployer should consult with counsel and consider the following: • Are there sufficient factual grounds to implement a testing policy, such as a culture of drug or alcohol use among workers en- gaged in safety-sensitive work? • Is the policy broad enough to capture impairment not only from the use of illegal drugs, but also prescription and legal recre- ational drugs? • Does the policy appropriately ad- dress safety, privacy and human rights issues? • Does the policy clearly outline how testing will be undertaken? • Does the policy identify conse- quences in the event of a breach (meaning discipline and termi- nation), including failure to par- ticipate in testing? Shana French and Brian Wasyliw are lawyers at Sherrard Kuzz LLP, one of Canada's leading employment and labour law firms, representing management. ey can be reached at (416) 603-0700 (main), (416) 420- 0738 (24-hour) or by visiting www. sherrardkuzz.com. Drafting effective policy nuanced work DRUG TESTING < pg. 5 The Canadian Payroll Association's InfoLine is a one-stop shop for payroll compliance knowledge. Fast and reliable answers at your fingertips. Find out how you, your HR team and organization can benefit from InfoLine and other payroll compliance tools. Visit payroll.ca CAnAdIAn PAyRoLL's besT kePT SECRET

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