In mid-May, B’nai Brith Canada’s anti-hate hotline received a call from a Toronto Transit Commission (TTC) employee who had been suspended, with pay, from his work as a bus driver for refusing to take a mandatory drug test.
The driver, an observant Jew, did not want to insert a swab in his mouth that included a preservative made from animal products.
For B’nai Brith, the case involved the driver’s human rights and the issue of religious accommodation, said Aidan Fishman, national director of he organization’s League for Human Rights.
B’nai Brith fired off a letter to the municipal agency, outlining its concerns and requesting the driver’s religious beliefs be accommodated, Fishman said.
At the same time, Amalgamated Transit Union Local 113, which represents the driver, traded letters with the TTC, raising concerns about “this significant breach of members’ human rights.”
Rick Fox, executive vice-president of Local 113, said TTC employees in safety-sensitive positions are required to take random drug tests, but “you want to be respectful of people’s religious beliefs.”
Other employees, such as vegans, might also object to the test, he surmised. “That is of concern to us, as well.”
Fox said the bus driver, who has 10 years experience, was sent home with pay while the TTC determined how to address his situation.
In a series of letters with the TTC, Fox wrote, “We have asked that you confirm that no person will be required to participate in oral fluid testing, which requires that they place animal product contaminated swabs in their mouths. Your correspondence to myself, and your notice to members, provides no such assurance. Rather, you are requiring that members self-identify in advance and have offered nothing but a vague offer to provide reasonable accommodation without stating what that accommodation will be.”
Fox’s comments were a response to an earlier letter from TTC spokesperson Peter Bartz, who runs the agency’s drug-testing program. In a letter to Local 113, Bartz stated, “Participation in the random testing program is mandatory for all designated employees. If an employee wishes to seek accommodation on the basis that they are unable to have contact with the above noted gelatin, the employee must notify their manager of the need for accommodation, in writing, in advance of being selected for random testing.
“A corporate communication will be issued to provide the employees with information on the oral swab and how to seek accommodation. Accommodation will be provided in accordance with the Ontario Human Rights Code.”
Responding to questions from The CJN, Brad Ross, executive director of corporate and customer communications for the TTC chief executive’s office, said he would not discuss the specifics of this case. But he said the test applies to 10,000 TTC employees, “each of whom is in a safety sensitive position, be it an operator, mechanic, heavy equipment operator, manager or executive.”
Between May 8, 2017 and April 13, 2018, the TTC had received three refusals to take the test, which includes an oral swab and a breathalyzer.
“Refusing one part of a test is a policy violation and can lead to discipline, up to and including dismissal,” Ross stated.
Ross said accommodation for employees “is provided on a case-by-case basis and is particular to an individual and their needs. We will be acquiring a new collection device that will eliminate the animal product concerns for drug testing.”
Fishman said the TTC had informed him by email that it would provide some form of accommodation. “It’s definitely better than the position before,” he said.
As for the bus driver, he remains off work and is receiving worker’s compensation.
“He is traumatized by the idea that his employer would force him (to take) the test,” Fox said.
The employee was worried about being removed from duty and how he would be accepted in the workplace. “The stress levels would go to the extreme,” Fox said.