In Ontario, an employer is only permitted to require employees to undergo drug or alcohol testing in certain predefined circumstances. In a unionized environment, ascertaining such conditions includes reviewing the applicable collective agreement and relevant company and union policies to determine the circumstances in which such testing is permitted.

In this blog, we explore the concept of testing employees for drug or alcohol use in a unionized environment, including a review of the circumstances in which testing is permissible and the evidence required to support the necessity of testing an employee in a given circumstance.

Bus Driver Caught Sleeping on the Job

The recent arbitration decision of TTC v. ATU, Local 113 (Grievance of A.C.) illustrates a grievance related to drug testing in a unionized environment.

The case involved a grievor employed by the Toronto Transit Commission (TTC), a safety-sensitive workplace. The grievor occupied a safety-sensitive position as a bus operator for the TTC.

On June 19, 2019, the grievor parked his bus on a residential street adjacent to a bus station, contrary to TTC rules and policy. One of the grievor’s supervisors was driving in the area and observed the grievor’s bus parked in an inappropriate location. When he approached the bus, the supervisor noted that the lights of the grievor’s bus had been turned off, the window shade beside the driver’s seat had been pulled down, the grievor had reclined his seat and closed his eyes; in other words, the grievor was clearly fast asleep while inside of his bus.

The supervisor knocked on the grievor’s window and startled him awake. The supervisor then asked the grievor if he required medical assistance, to which the grievor responded that he did not. When asked why he was parked inappropriately, the grievor was unable to provide a satisfactory explanation. Moreover, he did not deny sleeping on the job, which is a violation of company policy.

Employer Requires Employee to Undertake Drug Test Due to Employee’s Appearance & Demeanour

The supervisor determined the grievor’s demeanour to be evasive and fatigued and appeared dishevelled. Additionally, the grievor refused to provide straight answers to the questions asked of him. As a result, the supervisor filled out a Reasonable Cause Testing Documentation form that required the grievor to undertake a drug test. The supervisor contacted a second supervisor who attended the scene and countersigned the drug testing form. The second supervisor removed the grievor from the scene to conduct the drug test.

On June 20, 2019, the grievor’s test result came back positive for cannabis, a drug prohibited under company policy. As such, the grievor’s employment was terminated on July 24, 2019. The grievor commenced the grievance concerning the drug testing policy on July 30, 2019.

Are Employers Allowed to Drug Test Unionized Employees?

In the context of unionized employment, employers are permitted to enact policies related to drug testing so long as such policies are reasonable. In addition, requests for drug tests must be supported by reasonable cause. For example, an employer may not enact a policy requiring every employee to undergo drug testing before every shift, regardless of suspicion of actual drug use. Instead, employers must have reasonable cause to believe that the appearance, actions or conduct of a unionized employee while on duty are indicative of being under the influence of either drugs or alcohol.

The arbitrator noted in this case that the determination of whether reasonable cause exists is fact-driven and depends upon the particular circumstances of each case. However, it was also pointed out that when a dispute arises with respect to drug testing of a unionized employee who occupies a safety-sensitive position, some deference must be shown to the person who exercised their judgment that the employee should undergo such drug testing. Moreover, when, as here, a second opinion has been obtained as to the questionable state of the employee, then the arbitrator should also take that into account when deciding whether it was reasonable to order an employee to undergo a drug test.

Importantly, in assessing reasonable cause, the standard to be applied is not one of perfection, as in many cases, it boils down to a judgment call. That said, on balance, there must be sufficient reason for the employer to conclude the employee in question may be under the influence of something and to order a test to confirm those suspicions.

Did the Employer Have Reasonable Cause to Drug Test the Grievor?

The arbitrator noted the grievor acknowledged he had violated company policy in that he had fallen asleep in his bus while on duty but asserted that this supported only a finding that he had violated the TTC’s Operating Excellence policy and, as such, should be punished only for falling asleep on the job. To that end, the arbitrator noted that concluding that the grievor had engaged in an Operating Excellence violation did not rule out also finding that reasonable cause existed to require the grievor to undergo a drug and alcohol test.

The arbitrator considered all the evidence, including that the grievor routinely appeared dishevelled at work and claimed that he always drove his bus while the seat was reclined. He determined that the grievor had intentionally parked his bus on a residential street, violating company policy. Considering the grievor’s unbelievable explanations about his slovenly, sweaty appearance and his confusion concerning the questions asked of him on the date of the incident, there was a reasonable basis to require the grievor to undergo a drug test.

Safety-Sensitive Nature of Position & Employee’s Behaviour Reasonable Grounds for Drug Test

The arbitrator also noted that the grievor occupied a safety-sensitive position for a safety-sensitive employer, as a result of which there was reason for the two supervisors to be concerned that the grievor was engaging in more than just sleeping on the job. Notably, the arbitrator noted that the supervisors did not have to be correct that the grievor was impaired; instead, they required only reasonable suspicion that he might be able to substantiate the requirement to undergo testing. As such, the supervisors were entitled to conclude the grievor due to his appearance and presentation (being unkempt and confused).

In the result, the arbitrator was satisfied that there was ample evidence to support the ordering of drug testing for the grievor in this case, given that he had been caught sleeping on the job while parked in an appropriate area, was slovenly and sweaty in appearance, and appeared tired, confused, and slow to respond to any questions asked of him when he was found. In these circumstances, the TTC had sufficient reasonable cause to order the drug test.

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