Should transit drivers be subjected to random drug tests?

About half the Toronto Transit Commission’s workforce — from drivers and supervisors to track-level maintenance workers — will soon be subject to random drug and alcohol testing. City councillors on the Toronto Transit Commission approved the measure on October 19th 2011 as a deterrent to substance abuse on the job that they believe will improve public safety. TTC chief general manager Gary Webster estimated that about 10 per cent of the 6,000 TTC workers considered to be in safety-critical jobs would be subjected to random testing under the expanded fitness-for-duty policy in any given year. TTC executives have agreed to be governed by the testing, too.

The decision to expand a more limited testing policy implemented last year will make the TTC the first transit agency in Canada, with the exception of some cross-border bus companies such as Windsor transit, to conduct broad, random screening.
The policy could be implemented within months, after officials take some time to work out the details.

Webster estimated the tests would cost $50 to $60 each, or about $300,000 annually. The union claims there would be significant additional expense from time lost by employees who would not be able to work until they are cleared by the lab result. If that is so, I think that the employees who are waiting for the results of their tests should still be paid during their wait period. If it turns out that the test is positive, then the pay they received while waiting for the results should be deducted from their next pays. Further, I don’t think that they should have to pay the costs of the tests unless the tests are positive.

The issue of drug use and the TTC was pushed into the forefront in April 2007 when TTC maintenance worker Tony Almeida was killed in a subway tunnel accident. A subsequent report found Almeida had levels of THC in his system indicating he had consumed marijuana during his shift.

There were 39 alcohol and drug-related incidents over 30 months between 2006 and 2008. The TTC won’t say how many there have been since. Transit officials say the numbers can’t be discussed because they’re part of a policy grievance subject to arbitration launched by the union last October. The transit authority says that 39 is a low rate but states that the consequences can be very high.

At the time TTC staff first proposed random testing for drugs and booze, the then-TTC chairman Adam Giambrone called the tests “too invasive” and he noted the situation of impaired TTC workers was not at a “crisis” level. Subsequently, in a vote in 2008, TTC commissioners rejected the staff recommendation to introduce random testing.

Three years later, the issue was once again in the headlines when Toronto Police allegedly found marijuana in a driver’s bag following a fatal TTC bus crash on Lawrence Ave. E. near the Don Valley Parkway. Last week, cops charged the TTC bus driver with criminal negligence causing death and possession of cannabis in the wake of that August 2011 bus crash in Toronto that killed passenger Jadranka Petrova although the police said there were no signs he was impaired at the time.

It is difficult to be absolutely sure when determining signs of impairment when drugs are ingested into the human body. I am not saying that his actions were effected by the ingestion of marijuana but in my respectful opinion, his decision to swerve into the lane on his left to pass a truck was what caused the fatal accident. One is forced to ask rhetorically if any amount of marijuana in the human body, even if undetected, can have a bearing on a driver’s ability to drive his vehicle in safety.

The random testing expands an existing fitness-for-duty policy that has been in place since October 2010. It requires new hires and employees who have been treated for drug and alcohol use, or been involved in a related incident, to be subject to urinalysis. Further, workers who are under reasonable suspicion of impairment or those who have been involved in an incident are subject to saliva swabs or breath tests.

But the TTC says the limited testing hasn’t diminished drinking and drug use on the job and it needs the random testing to act as a deterrent, something that’s supported by U.S. research. There is no doubt that the fear of being caught with having alcohol or illicit drugs in one’s body can be a real deterrent especially if the consequences can result in immediate suspension or dismissal. It is for this reason that I support the random testing of transit drivers who have the safety of their passengers in their hands.

On the other hand, I am not convinced that the testing should apply to ticket takers in the subway stations or even the senior executives of the TTC unless their testing is simply to imply that the driver’s aren’t being singled out.

The TTC has agreed to a suggestion, supported by the union, to investigate “non-invasive” cognitive tests used by some U.S. military agencies that detect impairment from fatigue or stress. But TTC chief general manager Gary Webster said those tests are not yet sufficiently reliable to stand alone. However, I like the idea of random tests for fatigue and stress. A driver driving a bus load of passengers in a heavily congested street who is extremely tired can cause a fatal accident just as easily as one who is drunk. This is why it is necessary for pilots of passenger planes to get enough sleep to handle the controls of their planes. Surely the same should apply to bus, streetcar and subway drivers also. Stress can cause accidents but just because a driver’s blood pressure is high, doesn’t necessarily mean that he will automatically cause an accident.

The move by the TTC comes despite harsh objections by the transit workers’ union, which is accusing the TTC of violating employees’ right to privacy by enforcing random breath and saliva tests. Give me a break. Is the union saying that their members are so special that they shouldn’t be randomly tested at all?

Union leader, Bob Kinnear threatened legal action and accused the TTC of misleading the public. He said in part;

“The testing they’re proposing will not determine impairment. It will, however, determine what has been consumed by that individual over the last three weeks. Sleep deprivation is probably our biggest impairment within the (transportation) industry.” unquote
Admittedly, Kinnear stressed that the union doesn’t want to see workers impaired on the job, either.

I agree with Kinnear that the testing should be done in such a way that an accurate determination can be made at the moment of the testing as what was ingested when a breathalyzer test is undertaken. It seems to me that what is important is the ability of the driver to drive a vehicle at the time the test is given and not whether or not he ingested an illicit drug three weeks previous to the test.

Although I don’t think anyone should ingest an illicit drug at any time but if a driver of a transit vehicle ingested an illicit drug three weeks ago while on holidays, why should we be concerned that it shows up three weeks later just before he gets into the vehicle? I for one as a passenger would be more interested in a determination as to whether or not the transit driver is impaired by an illicit drug just before be boards the vehicle and not whether or not he took an illicit drug three weeks prior to returning to work.

The current TTC chair Karen Stintz, who supports random testing if it strengthens the TTC’s driver’s fitness for duty policy, wouldn’t reveal more recent numbers of employees caught impaired on the job. Why she won’t give us those figures doesn’t make sense at all. Nevertheless, she said, “We still have incidents and that’s why management is concerned.”

Stintz stressed the commission doesn’t want to know about whether employees engage in drugs or alcohol in their own time, just when they are on the job. “All we want to know is that when an employee shows up for work they are fit for duty and they are fit to operate their vehicle.”

Ontario Safety League president Brian Patterson said he was surprised the TTC didn’t implement random testing in 2008. He said;

“It’s not new, it’s standard, it’s safe and it’s proven technology, and at the same time the question of personal privacy has been addressed in a number of court jurisdictions in North America. It’s good for the union and the TTC, from a public perspective. Every 90 days you’ll know how many tests were conducted, and I suspect the vast majority are passes. It gives the employee the opportunity to self-identify if they have a problem and take advantage of the employee assistance program without any difficulty.” unquote

Coach Canada drivers, many of whom drive across the border, are already subject to urine, blood and saliva testing. GO Transit does not do random testing for bus drivers but GO train operators, who are employed by Bombardier, does pre-employment screening.

The senior staff at the TTC strongly believe that the introduction of random alcohol and drug testing is an effective and necessary deterrent to protect employees, our customers and the public at large.

Employees could be randomly tested for alcohol impairment with a breathalyzer and for drugs through an oral fluid test.

Councillor Joe Mihevc, former TTC vice-chairman, said he believes random testing is a human rights violation.“The whole issue of whether it actually causes people to have a change in behaviour is dubious, the evidence on that is very unclear,” Mihevc said. Mihevc argued people have a right to privacy and that right is violated by random testing. He said;

“What you want in a safe job environment is people to be able to come forth if they have addiction issues that they are struggling with, you want to empower supervisors so if someone looks like they are impaired that they are stopped,” unquote

But Mihevc agreed passengers “absolutely have a right to a driver that is not impaired.” He added, “We need to put in place systems across the board that help to ensure that the system provides the safety for passengers.”

I believe that random testing will serve that purpose.

Testing employees or job applicants for drug or alcohol use invokes a controversial area of policy and law that is still establishing its parameters. No one denies that employee drug and alcohol abuse costs employers billions of dollars each year in decreased productivity, increased liability exposure, and higher workers' compensation insurance premiums. Employers clearly have a substantial and vested interest in not only providing, but also ensuring, a drug-free workplace, for the safety and welfare of both employees and employers.

Controversy enters the picture when employers either ineptly or aggressively impose drug testing in a manner that may violate personal or constitutional rights, such as privacy rights or protections against unlawful searches and seizures. While drug testing is permitted in most states in the US, it is not always mandated. For those employers who implement drug testing programs, it is imperative that the programs follow state and federal guidelines in order to ensure protection of employee rights.

The U.S. Constitution does not prohibit drug testing of employees. However, in the U.S. Supreme Court case of Treasury Employees v. Von Raab, a 1989 case, the high court ruled that requiring employees to produce urine samples constituted a "search" within the meaning of the Fourth Amendment to the U.S. Constitution. Therefore, all such testing must meet the "reasonableness" requirement of the Fourth Amendment (which protects citizens against "unreasonable" searches and seizures). The Court also ruled that positive test results could not be used in subsequent criminal prosecutions without the employee's consent.

I suppose the issue in the US and in Canada is whether or not random testing is unconstitutional. It is my respectful view that it is not unconstitutional. For example, it was determined by the Supreme Court of Canada years ago in the Husky case that the police could randomly pull over a motorists and give him a test to determine if his driving is impaired either by alcohol, drugs or even sleep deprivation. The reason for this not being unconstitutional is that the safety of others on the road takes precedence over the privacy rights of the individual. I believe the same principle applies in the random alcohol/drug testing of transit drivers.