A story about the TTC proposing to introduce random drug testing of its unionized employees has been all over the media lately. The union is resisting on the basis that random testing violates employee’s “privacy rights”. In Ontario, we do not have a statutory right to privacy. However, arbitrators have found that there is an implied right to privacy at work, at least in a unionized workplace covered by a collective agreement. In addition, drug and alcohol testing can, and often does, violate human rights legislation, which prohibits discrimination in employment on the basis of disability, and disability includes drug and alcohol addiction.
A big problem with drug tests, as many of the cases note, is that they do not measure actual impairment. If I smoke three marijuana joints on the weekend, this will show up in test taken Monday, even though I am perfectly sober when I get to work Monday morning. Therefore, the employer is really testing what I did on the weekend. Do you think my employer should be allowed to do this when I have never presented a problem of impairment at work before? Should my employer be able to discipline or dismiss me for failing that test? This is one of the key debates underlying the tensions in many of these cases.
An employer introducing a mandatory drug and alcohol test in a unionized environment will need to satisfy a balancing test of employer interests (including safety concerns) and employee rights to not be subjected to forced urine and/or blood tests at the hands of their employers. And since addiction is a disability, any testing model that results in discipline or dismissal of employees who fail the test will likely be struck down as violating human rights legislation, unless the employer can show that it has accommodated the employee’s addiction to the point of ‘undue hardship’. Follow? This stuff is tricky.
So, can the TTC introduce mandatory drug testing of its unionized employees? The answer is: it depends on how serious a problem they are facing, what (if anything) the collective agreement says about this right, and on how they draft and implement their policy, including the implications that are determined to flow from a failure of the test. A good discussion of a drug testing policy involving bus drivers is Milazzo v. Autocar Connaisseur (decided under the Federal human rights legislation–check out the analysis of s. 10 beginning at para. 94 in particular). We’ll keep our eye on the TTC, and on the union’s response.
