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TTC wins right to demand random drug and alcohol tests on 10,000 drivers, other workers

by Joseph Brean National Post, posted 03 04 2017

Toronto’s transit authority can start demanding random drug and alcohol tests from drivers of subways, buses and streetcars, following a judge’s decision Monday.

Other employees of the Toronto Transit Commission with safety-related roles in maintenance, control or the executive will also be required to submit on demand to a breath test for alcohol or an inner lip swab for a number of other drugs including marijuana, cocaine, opiates and amphetamines.

The tests will begin within the next few days, said Toronto Transit Commission spokesman Brad Ross, who noted he is covered by the policy, as is chief executive Andy Byford.

Tests will be set up to happen to every employee on average once in five years. They are meant to test for impairment at the time of the test, and nothing more, Ross said.

Random testing was pledged by the TTC shortly after a horrific crash in the summer of 2011, when a bus rear-ended a truck, killing a 43-year-old female passenger. The driver gave a breath test but refused a TTC drug test. He was charged with possessing marijuana.

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A few weeks later, random testing was added to TTC policy. The new ruling by Frank Marrocco, associate chief justice of Ontario Superior Court, rejects the TTC union’s request for an injunction against that policy.

Some arguments he dismissed outright, such as the fear of spoiling the relationship between employees and management. Others were balanced against the legitimate goal of safety, such as embarrassment, damage to reputation, or the stigma of being seen getting tested.

An employee being fired for a false positive due to flawed testing was acknowledged as a possible risk, but the judge noted this person could simply sue for wrongful dismissal. It was not enough to make the overall policy unfair.

A key argument was the policy’s role as a deterrent, and Byford offered evidence from other jurisdictions that have similar random testing policies, such as the U.S., the U.K. and Australia.

Random tests, the judge decided, ‘will increase the likelihood that an employee in a safety-critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the test result is known or deterred by the prospect of being randomly tested.’

It will apply to 10,000 TTC staff.

All other employees, in non safety administrative roles for example, remain subject to a broader fitness for work policy, in which testing may be demanded with reasonable cause or after an incident, in cases of repeated abuse, or as a “final condition” of appointment to a sensitive safety role.

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