Testing the limits: New developments in workplace drug and alcohol testing

By Killian McParland and Onye Njoku

A recent labour arbitration decision, Amalgamated Transit Union, Local 113 v Toronto Transit Commission, struck down the random drug and alcohol testing program of one of Canada’s largest transit authorities, the Toronto Transit Commission (“TTC”), and has cast doubt on the reliability of drug testing for cannabis (THC) and cocaine. The long-awaited decision, which has attracted media attention, addressed a union’s challenge to the random testing program that formed part of the TTC’s overall Fit for Duty Policy.

As we previously reported in 2017, the Union’s initial attempt to block the implementation of this random testing program with an injunction was unsuccessful. Almost a decade later, after a lengthy arbitration featuring dozens of fact and expert witnesses, Arbitrator Laura Trachuk has released a 389-page decision.

Random testing remains significantly restricted

The Arbitrator decided that the TTC’s random testing program was unjustified and ordered the TTC to immediately stop random testing.

In this regard, the decision confirms the high threshold to justify random testing. The TTC relied on years of safety data, drug-related incidents, and internal reporting. Despite this extensive evidence, the Arbitrator was not satisfied that the TTC had proven a general problem with substance abuse in the workplace sufficient to justify random testing.

Following a detailed analysis of the evidence, the Arbitrator deemed much of it to be insufficiently reliable or to have limited value. Ultimately, the Arbitrator found the evidence demonstrated substance abuse problems for too small a proportion of the TTC’s workforce.

Employers considering implementing random testing should be aware that the bar is high and the evidentiary expectations are onerous.

The bigger picture: Challenges to drug testing for cannabis and cocaine

Another reason the Arbitrator found TTC’s random testing program unjustified was because it relied on oral fluid testing for THC and cocaine. In particular, the Arbitrator found that the oral fluid cut-off level for positive tests for THC (10 ng/mL) and cocaine (50 ng/mL) were unreasonable. After reviewing extensive, conflicting expert evidence, the Arbitrator found that these “positive” tests are not reliable evidence of impairment.

While most Canadian employers do not conduct random testing, the Arbitrator’s findings regarding the efficacy of oral fluid drug testing for cannabis (THC) and cocaine is of broader interest to employers with workplace drug and alcohol programs. Many employers operating in safety-sensitive environments conduct testing in more targeted circumstances, such as “reasonable cause” or “post-incident” testing.

That said, the Arbitrator was clear that she did not find the use of oral fluid testing for THC and cocaine unreasonable for reasonable cause or post-incident tests. The Arbitrator indicated that the test results are still relevant and, in those contexts, can be assessed alongside other relevant evidence, such as observed behaviours or the circumstances of a workplace incident. That assessment would be case-by-case, but the implication is that a positive oral fluid test, on its own, would not justify discipline.

Whether the TTC will seek judicial review of this decision remains to be seen. For now, the decision is not binding on other labour arbitrators, but its scale and depth of evidence make it likely to be cited as persuasive authority in future cases.

Conclusion

This decision is a notable update to the legal landscape for workplace drug and alcohol testing, and presents an opportunity for employers in safety-sensitive environments to review their program and approach. Employers considering random testing should carefully assess whether they have sufficient evidence to meet the high bar, and employers relying on oral fluid testing for THC or cocaine in any context should review their positive test cut-off levels and approach to disciplinary action. For guidance, please contact a member of our labour and employment team.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the authors or a member of our Labour and Employment Group.

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