Toronto Transit Commission’s implementation of random testing brings controversial issue back in the spotlight
The Toronto Transit Commission (TTC) decided recently that it would randomly test employees for drug and alcohol use in the wake of a fatal bus accident in which the driver involved had drugs in his possession. Predictably, the decision was met with swift and severe criticism from the city’s transit union.
The controversial media debate that followed holds some valuable lessons for astute human resources professionals who want the safety benefits of testing without employee backlash or expensive legal challenges.
The first things to consider when formulating an alcohol and drug test policy are that the law does not take kindly to treating employees in an invasive or discriminatory fashion and that random testing for alcohol use is more legally defensible than drug tests.
Breathalyzer tests measure if a person is impaired at the moment of the test. Oral fluid or blood tests to determine drug use are less conclusive. A positive test result indicates past drug use, but does not prove impairment. In fact, drug tests are often irrelevant to determining if an employee is unable to perform her job safely, which is why the courts tend to rule that random drug tests are too invasive.
The harshest criticism levelled by the transit union was saved for the intrusive and potentially misleading nature of random drug testing. The union noted that today’s tests are so sensitive that the drug use detected could have occurred days, weeks or even months previous. The TTC, the union charged, had no legal right to put the private lives of its employees under such scrutiny. It is instructive to note that the union did not mount serious opposition to random breathalyzer tests.
The legal problems associated with random drug testing are such that HR professionals should consider kicking them to the curb in favour of less contentious cognitive tests, such as walking in a straight line or testing reaction times.
Policy of termination a bad idea
Another key consideration is the sanctions imposed on those who fail the tests. Canada’s human rights code has ruled that alcohol and drug addiction is a disability that must be accommodated. This is why the Ontario Court of Appeal has expressly rejected drug and alcohol test policies that call for the immediate termination of those who fail.
This “duty to accommodate” is rooted in the legal principle that employers cannot wantonly discriminate against those who suffer from real or perceived substance abuse problems. This means that, from an HR best practices perspective, zero tolerance is not the best option. The appropriate first response to a positive test result is counselling and treatment. Termination is the last resort when all other avenues have been exhausted.
The foundation for best practices in random drug testing was established in 2000 by the Ontario Court of Appeal’s decision in Entrop v. Imperial Oil. The court concluded that random and pre-employment drug testing was not a reasonable condition of employment. Random drug tests, the court ruled, do not measure actual impairment of the ability to perform work safely.
Another reason why this landmark decision went against the employer was that the random drug testing policy in question made no provision for accommodation. The sanction imposed was immediate termination.
Entrop established that employers who implement random alcohol and drug testing must make a direct connection between the policy and safety in the workplace. The legality of random testing is limited to work environments in which impairment poses a significant safety risk. Being intoxicated or high in an office setting may hamper performance, but there is no risk to safety.
The most defensible random alcohol and drug test policies are those that are applied in workplaces involving manual labour, the use of heavy equipment or, as in the case of the TTC, where absolute sobriety is required to protect the public. Organizations that impose random tests on office workers or others who do not hold safety-sensitive positions will face strong legal headwinds if challenged.
Perhaps the best advice for HR professionals struggling with the contentious issue of random alcohol and drug tests is to abide by the Golden Rule. Treating employees with the same degree of dignity and respect that you would like to be treated with in similar circumstances is sound thinking. Viewing substance abuse as a disability and offering employees a second chance in the form of a temporary transfer to a non-safety-sensitive position or providing counselling and treatment is not only an effective legal strategy, it is good HR policy.
A compassionate approach to employees caught in a web of substance abuse or addiction will be noticed and appreciated throughout the organization.David A. Whitten is an employment law expert and the founding partner of Whitten Lublin LLP in Toronto. He can be reached at firstname.lastname@example.org.