Random Drug Testing Rights Float Amid Weed Legalization in Canada (1)

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By Peter Menyasz

Canadian transportation and construction companies are asking the federal government to give them the right to randomly drug test employees when recreational marijuana is likely legalized later this year.

If the lobbying succeeds, companies such as Purolator Inc., Greyhound Canada, EllisDon, Aecon, Ledcor Group, Air Canada, and Bell Canada would be able to test employees to prevent—or limit—a potential surge in workplace accidents due to increased marijuana use, industry officials told Bloomberg Environment.

Legalizing recreational marijuana, which is now expected to take effect across the country in August, will make it more tempting for Canadians to try it for the first time or use it more frequently, Chris McNally, chairman of the Canadian Construction Association, told Bloomberg Environment.

That will be an issue for workplaces where safety is critical for employees and the public, McNally said.

“We’d be foolish to imagine that, right now, there isn’t someone showing up with drugs, or marijuana, in their system,” he said. “We have that problem in construction.”

But, other than the random drug testing issue, Canadian companies told Bloomberg Environment they don’t expect much change in their day-to-day handling of safety issues when recreational marijuana is legal.

Advocates: Base Risk on Data

While marijuana advocates understand industry concerns over safety and industrial accidents, they also want to ensure that the discussion of risk is based on legitimate data, Craig Jones, executive director of the National Organization for the Reform of Marijuana Laws in Canada, told Bloomberg Environment.

“My question is, do we have an accurate baseline of how much use there is out there today?” Jones said. “I don’t think we do.”

Jones pointed to a Feb. 21 Statistics Canada analysis of Canadian marijuana consumption that cited “considerable uncertainty” in estimating use—in part, due to unavailable data for illegal activity and medicinal use.

The report said marijuana use in Canada more than doubled to 12.3 percent of those 15 and older in 2015 from 5.6 percent in 1985, with highest use among 18 to 24-year-olds in 2015 at 28.4 percent.

A Policy Gap?

Marijuana legalization likely won’t affect the transport industry’s approach to workplace safety, but the lack of a legal basis for random drug and alcohol testing is a major policy gap that increases risk, Derrick Hynes, executive director of the Federally Regulated Employers—Transportation and Communications (FETCO) lobby group, told Bloomberg Environment.

Current federal and provincial laws don’t authorize random drug testing, and courts are sending mixed signals. That means employers who need to do random testing must either negotiate it into a collective agreement or face human rights or privacy complaints, McNally said.

Employment and Social Development Canada is working on the issue of legalized marijuana’s safety aspects with federally regulated employers and unions, as well as with impairment and other experts, Josh Bueckert, a spokesman for the department, said Feb. 27.

Random testing has been found permissible in some situations where the employer can show that a risk outweighs the employees’ rights, he added.

For example, the Supreme Court of Canada’s ruling in a case involving Irving Oil said an employer must demonstrate a documented problem with drugs or alcohol before random testing can occur, but that has led to conflicting lower court rulings in Ontario and Alberta, Hynes said.

“We don’t think that goes far enough,” he said. “We think the risk is going to be elevated.”

Data from the U.S. show an uptick in marijuana use in states like Washington and Colorado where it has been legalized, and FETCO’s member companies want legislation to mandate random testing, he said.

Companies Don’t Expect Major Change

Greyhound Canada, which employs more than 1,000 drivers nationwide, doesn’t foresee big changes to its safety approach, Stuart Kendrick, the company’s senior vice president, told Bloomberg Environment.

“We follow a lot of the rules in the U.S. because we have a lot of cross-border operations,” Kendrick said. “I don’t think there will be much change at all.”

Greyhound will continue to conduct pre-employment checks on drug use and regular, random third-party drug testing of employees, he said, but the company is also keeping an eye on ongoing court cases on testing in case they affect the program.

The company will offer driver education sessions on marijuana “even though it will be a legal drug,” and will train supervisors to spot impairment, he said.

Expectations for Canada are based on Greyhound’s experience in the U.S., where legalization in some states hasn’t affected the company’s safety policies, Al Smith, the company’s corporate director of safety for the U.S. and Canada, told Bloomberg Environment.

The company’s random testing includes marijuana, which remains illegal under federal law in the U.S., Smith said. Workers can be selected at any time for testing and can be terminated for cause based on a positive test, but that doesn’t happen often, he said.

“We have a zero tolerance policy,” he said. “We’ve had a few cases, but it’s quite rare.”

Most employees, particularly drivers, realize their “very heavy responsibility” to the public and fellow employees, Smith said. They’re also aware of the random testing and that managers and supervisors are well trained to detect impairment, Smith said.

Uncertainties in Use

It’s unlikely legalization will cause a spike in marijuana use, and even if more people try marijuana, that doesn’t mean they’ll be turning up to work impaired, Jones of the National Organization for the Reform of Marijuana Laws in Canada said.

“Intuitively, most people who would use cannabis already are,” he said. “Most people who wouldn’t won’t, even after legalization.”

Plus, legalization won’t give employees a license to be impaired in the workplace, so safety risks won’t increase, Natalie C. MacDonald, employment lawyer, and owner and founder of MacDonald & Associates in Toronto, told Bloomberg Environment.

But, she warned, that because marijuana can stay in the bloodstream for weeks, assessment of impairment will be difficult.

Legal marijuana likely won’t affect company safety policies significantly, but the full details of legislation aren’t yet known, Kevin MacNeil, a partner in the Ottawa office of Norton Rose Fulbright, told Bloomberg Environment.

Employers won’t have to tolerate employees being high at work any more than they do now for alcohol, and employers will be able to prohibit its possession or use in the workplace, MacNeil said.

“I don’t think this is necessarily going to change anything,” he said.

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