The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Law of Work Archive

Mandatory Drug Testing and the TTC

by David Doorey September 15, 2008
written by David Doorey September 15, 2008

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.

3 comments
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
Do Markets or Laws Work Best in Eliminating Employment Discrimination?
next post
Strikes at U. of Windsor and (maybe) VIVA

You may also like

This Blog Entry is About the Lunacy of...

July 21, 2019

A Cross Country Update on the Card-Check versus...

October 3, 2018

The Folly of Not Voting to Strike in...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦 @TheLawofWork@mas.to Follow

Law Prof. Talking #labor & #employment #law to the masses. @YorkUniversity @OsgoodeNews @LSELaw @CLJEHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

TheLawofWork
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
1h

President Biden calls for passage of #PROAct

Act bans employer captive audience anti-union meetings;

Expands def of “employee” to capture essentially what we call “dependent contractors” in Canada;

Increase penalties for unfair labor practices;

Doesn’t adopt card-check.

Steven Greenhouse @greenhousenyt

President Biden: "I'm so sick and tired of companies breaking the law when workers are seeking to unionize"

Reply on Twitter 1623164729530191874 Retweet on Twitter 1623164729530191874 Like on Twitter 1623164729530191874 4 Twitter 1623164729530191874
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
5h

My fingers are just too big to play an A chord on the #guitar.

Otherwise I would be a rock star. This is the only thing holding me back.

Reply on Twitter 1623109078431027200 Retweet on Twitter 1623109078431027200 Like on Twitter 1623109078431027200 12 Twitter 1623109078431027200
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
5h

Not seen comparable stats for Canada.There are terminations, but also better laws in most Canadian jurisdictions, including

- remedial certification
- interim reinstatement
- card-check/quick votes

“1 in 5 workers in US is fired for organizing a union” https://onlabor.org/labor-law-reform-is-needed-for-unions-to-succeed/

Reply on Twitter 1623103873161330688 Retweet on Twitter 1623103873161330688 Like on Twitter 1623103873161330688 1 Twitter 1623103873161330688
Load More

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Newfoundland
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.