As the TTC has recently been cleared by the courts to conduct random drug testing, we’d like to address what many of our clients have been asking us: can they too conduct random drug testing? The answer isn’t a simple yes or no. While the ruling did open the door and provided good insight into how a company needs to argue for random drug testing, it didn’t create a new law allowing random drug testing. But as a practical matter, the answer is no, not really. Technically, the ruling simply denied the union’s request for an injunction to prevent them from random drug testing. The permissibility will be determined at an ongoing arbitration case. We can’t forget that it took the TTC six years to obtain this ruling by the courts. This was a long and expensive process with many hurdles that would dissuade most companies from trying to do the same thing. With that said, if you are thinking about implementing random drug testing in your company, there are a few key things you will have to do to support your case. Here is what we have learned from the TTC ruling:

    1. Show very specific risks that compromise employee and public safety.
    2. Provide evidence of abuse in the workplace.
    3. Demonstrate that other methods to deter substance abuse have failed.
It was encouraging that the court’s decision acknowledged the reasonableness of many of arguments that we and others have used in the past to justify random drug testing. In particular:
    1. Random drug testing serves as a deterrent.
    2. It is likely an employee with a substance abuse disorder will report to work impaired.
    3. Statistically, random workplace drug testing results in significant decline in the rate of positive drug tests.
Regardless of the legal environment and limits on drug testing there is still much you can do to reduce the risks of employees who are affected by drug and alcohol problems. Like any management initiative, it starts with a review of the identification of the risks, review of relevant policies, processes, and support that make up your current program and uncovering the “leaks” that may lead to avoidable problems. At WMC, we have expertise in this area. Give us a call to find out how we can help you reduce risk and better manage drug and alcohol in your workplace. For more information on the specifics of the TTC ruling we recommend this post by Sherrard Kuzz LLP. For more information on the current limits to drug testing, we recommend this post by Mathews, Dinsdale & Clark LLP. For an article that illustrates how to present the case for random drug testing well, read this article by The Globe and Mail.