The Toronto Transit Commission has received the green light to do random drug and alcohol testing on 10,000 of its employees, including those in safety-sensitive jobs, designated management positions and all executives. 

This decision comes after three safety incidents in 2015 alone, where transit operators who were involved in collisions tested positive for drugs. 

The TTC will use a breathalyzer to test for alcohol and an oral swab to test for cannabis and other drugs. 

This decision is interesting because it touches on two controversial questions: 

1. Can an employer implement a random testing policy?

2. How do we define safety sensitive roles?

Random Testing 

Random testing in Canada has been debated for years. Past decisions have created guidelines for random testing, some of which include: 

• The workplace must be dangerous
• There must be evidence of a substance abuse problem
• Testing methods must assess current impairment
• Appropriate “cut-off” levels must be used 
• Collection and handling of samples must be sensitive to privacy rights 
• There must be limitations on the intrusive nature of testing
• Testing should be limited to “safety-sensitive” positions

In this decision, Justice Marrocco makes it clear that the TTC is a unique employer stating “the TTC is not a typical Ontario workplace” and the “safety of millions of TTC passengers” is at risk. Below are additional excerpts from Justice Marrocco that support random testing: 

• In this case the workplace includes the subway, buses and streetcars that travel throughout the city. The workplace genuinely is Toronto itself.   

• The Policy tests 20% of the Safety Sensitive, Specified Management and Designated Executive workforce in a year. This means the entire population of employees who are subject to random testing will have a chance of being tested within five years. It seems to me that because everyone will have a chance of being tested, over time, any stigma attached to compelling an employee to attend a location where drug and alcohol testing takes place will be quickly eliminated.

• Testing takes place in a secluded area. 

• Random testing applies to senior management of the TTC, including the Chief Executive Officer. This will also reduce any stigma associated with being tested for drugs or alcohol. 

• The breathalyzer measures a person’s breath alcohol level at the time of the test. It does not reveal other personal information about the individual.

• The oral fluid test takes about 5 minutes and involves rubbing something like a Q-tip against the inside of a person’s cheek. Two samples are taken concurrently. One is used for testing and the other is kept in case the employee wants to have the oral fluid sample retested. Unlike urinalysis, oral fluid testing does not pose the privacy issue of having to directly observe specimen collection to prevent adulteration of the sample.

• The evidence satisfies me that there is a demonstrated workplace drug and alcohol problem at the TTC, which is currently hard to detect and verify. This is factually different from the Irving Pulp and Paper decision where the arbitration board concluded that the employer exceeded the scope of its management rights under a collective agreement by imposing random alcohol testing in the absence of evidence of a workplace problem with alcohol use.

With respect to cannabis, many statements were made to support the use of the oral fluid swab as an adequate tool to enforce fitness for duty.

One thing to note is that the cut-off level for cannabis is set at 10ng/ml, which is higher than oral swab cut-offs in other policies, which are often set at 5ng/ml. 

• An oral fluid test reflects the remnants of THC (prior to it being metabolized) found in the oral cavity after marijuana use. These remnants remain there for several hours.

• When the cut-off for THC is set at 10 ng/mL, as it is in TTC's testing policy, the remnants will test positively for approximately 4 to 8 hours after use.

• Approximately 4 hours after use the THC levels fall below the 10 ng/mL cut-off level and the test result will be negative.

• It is accepted that psychomotor and cognitive deficits from marijuana use last 4-24 hours at minimum. It is thus reasonable [emphasis added] to correlate a positive test for THC with impairment. 

Justice Marrocco goes on to say “I am satisfied on the evidence that due to the high cut-off levels set out in the TTC Policy (which are higher than the cut-off levels proposed in the draft SAMHSA Guidelines) and the corresponding short windows of detection, the time periods when oral fluid samples test positive for drugs overlap with the time periods during which these drugs impair the psychomotor and cognitive abilities of the person tested. Therefore, there is a likelihood that the person who tested positive was impaired when tested.”

He completes the analysis by commenting on chronic cannabis use, stating “I recognize that there is also a question about chronic use of marijuana. A chronic user may test positive for THC even if he or she consumed marijuana more than 4 hours before the test due to a build-up of the substance in the body. This does not mean, however, that the chronic user does not still pose a safety risk.”

Defining Safety-Sensitive Positions

The decision does not go into detail about the decision to include management and executives in the random testing program, other than saying “TTC management and [emphasis added] its employees, both of whom assist people in making approximately 1.8 million journeys on the TTC’s subway, buses and streetcars every day, expect that steps will be taken to make sure that those in safety-critical positions are fit for duty.” 

Justice Marrocco provided a thorough analysis and the full decision can be accessed here. 

The justification for the oral swab and other testing methods outlined in this case seem reasonable however we still remain unable to measure active impairment by cannabis at this time. This continues to be an issue in context of managing fitness for work. 

While this decision will have an impact on the transportation sector and other industries that serve the public, it will be interesting to see if this precedent carries over into the private sector.