Union has vowed to protect members’ right to privacy
A brand new “fitness-for-duty” policy was presented to the September 18, 2008 meeting of the Toronto Transit Commission (TTC). It has already caused controversy. The report recommends random drug and alcohol testing, pre-employment testing, testing with probable cause and testing as a result of an incident. Employees who had a previous drug- or alcohol-related infraction and employees who had received treatment for addiction would also be subject. The range of employees who would liable to monitoring would include those in safety-sensitive positions and in certain management positions.
Some of the impetus for this report comes from a 2007 accident in which a TTC employee was killed. He was working under a “last chance” agreement after being fired for smoking marijuana off TTC property while on break. The coroner found THC in his blood. The official report on the accident does not suggest that his possible impairment was a cause of the accident, and lists the creation of a fitness-for-duty policy as only an “opportunity for improvement.” However, at the time, his drug use was the main issue in the media. Bob Kinnear, president of Local 113 of the Amalgamated Transit Union, defended the employee and accused the TTC of slander. When this new policy was unveiled, he vowed to use any and all tactics to defeat it.
Drug testing has had an uneven legal history recently. The Alberta Court of Appeal upheld urinalysis as proof of impairment in Kellogg, Brown and Root, while the Ontario Court of Appeal did not in Entrop. These two rulings were contrasted by Arbitrator Picher in a recent award (see CLV Reports LVI 3794-4).
Adam Giambrone, the chair of the TTC, has distanced himself from TTC management, claiming he did not agree with all the report’s recommendations. He suggested in an interview with The Toronto Star that factors other than drug and alcohol impairment — fatigue and emotion, for example — should also be considered. He claimed that the commission was looking at new technologies such as optical and facial scans in the expectation of achieving more accurate testing.
Giambrone also characterized drug and alcohol testing as “morally and legally complex,” a view not reflected in the fitness-for-duty policy. It baldly states that “Canadian companies in high-risk industries have introduced … alcohol and drug policies that include testing” and that “Testing is an appropriate response to a body of evidence that demonstrates a considerable number of significant workplace incidents.”
A novel aspect of the new TTC policy is the weight it attributes to deterrence as a justification for testing. “The main purpose of the testing provisions is not to ‘catch’ employees, rather they are meant to deter them from dysfunctional behaviour which would pose risk in the workplace.”
All this leaves open the question of technology. Proof of impairment is the Achilles’ heel of some current tests and would have to be established at arbitration to make this policy stick.
Some of the impetus for this report comes from a 2007 accident in which a TTC employee was killed. He was working under a “last chance” agreement after being fired for smoking marijuana off TTC property while on break. The coroner found THC in his blood. The official report on the accident does not suggest that his possible impairment was a cause of the accident, and lists the creation of a fitness-for-duty policy as only an “opportunity for improvement.” However, at the time, his drug use was the main issue in the media. Bob Kinnear, president of Local 113 of the Amalgamated Transit Union, defended the employee and accused the TTC of slander. When this new policy was unveiled, he vowed to use any and all tactics to defeat it.
Drug testing has had an uneven legal history recently. The Alberta Court of Appeal upheld urinalysis as proof of impairment in Kellogg, Brown and Root, while the Ontario Court of Appeal did not in Entrop. These two rulings were contrasted by Arbitrator Picher in a recent award (see CLV Reports LVI 3794-4).
Adam Giambrone, the chair of the TTC, has distanced himself from TTC management, claiming he did not agree with all the report’s recommendations. He suggested in an interview with The Toronto Star that factors other than drug and alcohol impairment — fatigue and emotion, for example — should also be considered. He claimed that the commission was looking at new technologies such as optical and facial scans in the expectation of achieving more accurate testing.
Giambrone also characterized drug and alcohol testing as “morally and legally complex,” a view not reflected in the fitness-for-duty policy. It baldly states that “Canadian companies in high-risk industries have introduced … alcohol and drug policies that include testing” and that “Testing is an appropriate response to a body of evidence that demonstrates a considerable number of significant workplace incidents.”
A novel aspect of the new TTC policy is the weight it attributes to deterrence as a justification for testing. “The main purpose of the testing provisions is not to ‘catch’ employees, rather they are meant to deter them from dysfunctional behaviour which would pose risk in the workplace.”
All this leaves open the question of technology. Proof of impairment is the Achilles’ heel of some current tests and would have to be established at arbitration to make this policy stick.
