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Transit Driver Test Unreasonable

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The cognitive testing of all city transit drivers to see if they are competent to drive following two bus-related pedestrian deaths in late 2016 has been deemed “unreasonable” and “intrusive” and an invasion of privacy by an arbitration panel.

In a majority decision, the panel decided that the unilateral imposition of such testing was “unenforceable” and that there is “no evidence whatsoever to suggest any accident or incident was caused by cognitive impairment, nor is there any reasonable cause for the implementation of unilateral cognitive assessment testing.”

The issue dates back to a Dec. 14, 2016 letter from the province to the city which expressed concerns over a lack of policy when it came to evaluating the driving skills of its transit drivers in the wake of pedestrian fatalities involving city buses on Oct. 24, 2016 and Nov. 26, 2016.

In order to “respond quickly and appropriately,” city staff turned to DriveABLE, a contractor it engages to evaluate new hires and which offered a cognitive testing program.

Under the new policy, drivers were compelled to undertake a two-part evaluation.

Firstly, drivers would undertake an on-road skill assessment during a one-on-one ride-along session. The Amalgamated Transit Union Local No. 569, which represents ETS drivers, did not object to this aspect of the policy in its grievance.

The second part the union did take issue with was the new computer-based component that tests reaction and control, focus and attention, spatial judgment and decision making, span of attention field, memory and control, and the identification of hazardous driving situations.

The testing by DriveABLE was later altered to allow drivers to either take the test or see their own family doctor for a medical assessment. If the driver failed the test they were taken off the road and put on paid leave until they cleared medical protocols.

It implemented the testing in February 2017 and, out of 1,535 drivers, just four were flagged for followup after testing.

Of those, one suffered from “mild attention deficits and concentration issues” triggered by test anxiety. Another driver was found to be suffering a “mild cognitive impairment.”

Just one employee was found to have significant cognitive difficulties which were “already on their family’s and physician’s radar screen as possibly suffering from a cognitive disorder.”

The decision said that one employee was suffering “from a decline satisfying criteria for dementia as well as Parkinson’s.”

The union argued the city had “no legal or factual basis for imposing cognitive testing on all ETS drivers and no legal or factual basis for imposing subsequent medical assessments” on operators flagged by the test.

They also argued that the city “did not have a basis to impose such testing” as no accident had ever been linked to impairment of cognitive function and furthermore, cognitive testing they were using was not a “valid tool for detecting cognitive impairment that can lead to unsafe driving in a healthy population of drivers.”

In his decision, arbitrator Mark Asbell wrote that “to justify intrusion into the dignity and privacy of its employees, a policy must be responding to a real, not simply perceived or speculated, problem and a policy must have a measure of efficacy.”

“Privacy rights are paramount unless the employer can show its policy is responding to a real, not simply perceived or speculated, problem. Further, the employer must also show that the policy is effective in responding to an identified problem.

“We find no factual basis exists demonstrating the policy is responsive to a real problem of cognitive impairment within the ETS drivers workforce.”

The union and the city have now entered into discussions to reach a monetary settlement for those affected by the breach of privacy.

Adapted from The Edmonton Journal Oct.2,2018