A haze of uncertainty has descended on many Canadian workplaces as the country prepares for the legalization of recreational cannabis on Wednesday.
In an environment where an Ontario worker will be legally able to step out of the factory or office and spark up a joint on the sidewalk at lunch, many employers are scrambling to find and implement policies that can dissuade their workers from being high on the job.
“My concern is that employees won’t have the education behind it and they’re going to think that, ‘Oh, it’s legal now and I can just go out and do it’,” says Mike Asselin, safety manager for Sudbury’s William Day Construction Ltd.
“I think people are going to believe that … and employers are here getting information to try to control that,” says Asselin, who was attending a drugs and work conference in Milton this month.
Asselin’s company, which employs several hundred workers, has a anti-drug policy — run by workplace testing and safety firm DriversCheck — that subjects workers to tests prior to hiring, after accidents or if there is reasonable suspicion that they are impaired on the job.
But many firms that provide jobs in trucking, transit, aviation, rail, construction and other “safety sensitive” sectors are angling for something stronger still.
“In Canada (unlike the U.S.) we really have no legislative or regulatory approach to this issue,” says Derrick Hynes, head of Federally Regulated Employers — Transportation and Communications (FETCO).
“And we’ve consistently been arguing that we currently have a safety risk in Canada because there are no prescribed rules for managing impairment in the workplace,” says Hynes, whose group represents some of the largest transportation, oil and gas, forestry and rail groups in Canada.
FETCO was a key member of a 2016 task force that was formed by Ottawa in anticipation of the new cannabis legislation.
Released in December of that year, the task force report was woefully short on solid recommendations to combat what Hynes believes will be a sharp increase in marijuana use after the law comes into effect.
“We have a federal government that is passing legislation that will allow the recreational use of cannabis but not at the same time be making any change to workplace rules which we think are seriously needed,” he says.
While many experts expect a short-term increase in cannabis consumption post legalization — as curiosity or easier access lures some into trying it — they also believe that it will settle back to the saturation levels it reached under a porous prohibition.
But Hynes says the experience in U.S. jurisdictions like Colorado, where recreational use has been legal for several years, shows significant increases in consumption, traffic accidents rates and cannabis-related hospitalizations.
“So the concern is that increased use is going to find its way into the workplace and create a greater safety risk than currently exists,” he says.
“And employers will not have the tools to manage it effectively. This problem is only going to get worse and the safety risk is only going to be elevated once this bill comes into force.”
Aside from stating that a zero-tolerance policy might be created for heavy equipment operators, however, the report’s workplace cannabis recommendations were limited to this tepid trio:
- Facilitate and monitor ongoing research on cannabis and impairment, considering implications for occupational health and safety policies;
- Work with existing federal, provincial and territorial bodies to better understand potential occupational health and safety issues related to cannabis impairment;
- Work with provinces, territories, employers and labour representatives to facilitate the development of workplace impairment policies.
Far from these vague stabs at actions, the country should look to implement random testing legislation for industries deemed safety sensitive, Hynes says.
Currently, random testing in this country has been limited by a 2013 Supreme Court of Canada decision in a case that pitted a union against Irving Pulp and Paper Ltd. over the issue.
The court ruled that only those companies that could prove there was a problem with drug use or impairment among their employees could implement such a program.
“The standard is exceedingly high,” Hynes says.
Where Air Canada recently announced a zero-tolerance policy on cannabis use among flight crews, for example, they cannot enforce it via random testing.
A random strategy ensures that employees do not have the time to quit using a banned or controlled substance that announced inspections would allow them.
In the U.S., meanwhile, random testing is not only permitted but made mandatory in many safety sensitive sectors by federal regulations.
“The best example is the U.S. Department of Transportation which has in place a legislated approach to alcohol and drug testing in the workplace,” says Hynes, referring to jobs in trucking, rail and other risky ground transportation sectors.
“And in that case it’s not that the employer can, in fact, the employer must abide by the legislation which enforces a set of (testing) regulations.”
Many Canadian employers involved in surface transportation whose workers cross the southern border are already forced to abide by the U.S. rules, Hynes says.
The Toronto Transit Commission, which successfully argued that it did have a drug and alcohol problem, has had a random policy in place since 2017, and has tested hundreds of employees.
But Frank Grimaldi, president of Amalgamated Transit Union Local 113, which represents TTC workers, says the policy has little value and that his union is currently fighting it at arbitration.
“At the end of the day, safety is the number one priority for our members, who are part of the community we serve.” Grimaldi said through a spokesperson.
“However, we need measures that work. Random drug testing is misleading and it will not make the workplace safe. Research has shown these tests do not show impairment,” he said.
Grimaldi went on to say that the TTC’s random testing policy violates human rights provisions and is a waste of money to boot.
“The TTC is spending valuable time and money on thousands of tests of innocent persons. Those resources should be going to effective safety programs,” he said.
“That is why we are going to continue fighting the TTC’s policy at arbitration because it is the right thing to do. We are going to keep fighting because the American approach to random drug testing does not reduce accidents, it does not improve safety and it violates human rights.”
The Ontario Human Rights Commission released a new cannabis policy Thursday that included provisions on workplace testing.
It said testing of people with addictions, real or perceived, could be permissible if an employer could show it was a “bona fide” requirement of a job.
“However, employers should take a proactive approach to workplace drug and alcohol testing. Where these policies are necessary to achieve safety, employers should design them to avoid potential discriminatory impacts,” the policy said.
The OHRC said that, following the Supreme Court’s Irving ruling, company policies should be:
- Adopted for a purpose that is rationally connected to performing the job;
- Adopted in an honest and good faith belief that it is necessary to fulfilling that legitimate work-related purpose;
- Reasonably necessary to accomplish that legitimate work-related purpose. To show this, the employer must demonstrate that it is impossible to accommodate the person without imposing undue hardship upon the employer.
Even in the absence of government-mandated regulations, employers in safety sensitive industries are not currently powerless in their efforts to combat on-the-job use of cannabis and other intoxicants.
Deployment of pre-employment, post-accident and reasonable suspicion testing, for example, are widespread and generally accepted by the courts, Hynes says.
However a company’s impairment program is configured, it must be clearly written, contain explicit expectations and be thoroughly communicated among employees, say Barbara Butler, a Toronto consultant who specializes in drug and alcohol policies in the workplace.
“It has to be clear on what the purpose is, the overall objectives around health and safety, (and be) clear on who it applies to,” she says.
“It has clear rules on use and possession of illicit drugs … alcohol (and) responsible use of medications.”
Policies should also be explicit on standby and call-in rules, and the opportunities on offer for assistance to employees who develop drug or alcohol problems.
“And then it (also should lay out) the investigative tools that will be used to determine if someone’s in a violation and the consequences,” Butler says.
She says Wednesday’s legalization can provide employers with a good incentive to recirculate their drug and alcohol policies and to ensure they are understandable at all levels of a company.
“I’m always telling the lawyers, ‘Remember who the audience is’,” Butler says.
“We want this to be as clear as possible for the folks that are going to be reading it and need to comply with it. We don’t need to create 50-page documents.”
In any cannabis-specific testing program, recent use and the likely impairment that entails, would most likely be conducted by a mouth swab test like those currently being used by the TTC.
The swabs would be sent to an accredited lab that could assess levels of the intoxicating cannabis component tetrahydrocannabinol (THC) in oral fluids.
For longer-term use in companies with a zero-tolerance policy, urine tests could show traces of cannabis dating back three weeks or more.
Other impairment-testing options were on display at the Milton conference in early October, which was organized by DriverCheck.
This included one by Thornhill’s Workplace Impairment Solutions, which hopes to train designated company supervisors in a multi-faceted test used by police drug recognition experts (DREs).
Company founder Corey Adler says these tests include a walk and turn exam, a standing on one leg challenge, the finger to nose capacity and the Romberg’s balance test.
“We’re not reinventing the wheel. These tests have proven over and over again that people are impaired if they fail,” Adler says.
“We’re kind of privatizing (police drug recognition experts’) methods and their standardizations so different people can use it in the workplace.”
The Workplace Impairment Test would be taught to designated company officials by senior police DRE instructors.
But in the end, Hynes says, cannabis legalization should finally push federal regulators to move on tougher testing rules — especially when edible cannabis products, lacking any telltale smell or smoke signals, become legal next year.
“Nobody is saying the sky is falling and everybody is going to come to work stoned,” he says.
“But what we are saying is it’s likely to happen (among some), the risk is great but government has not given the employer community the tools to manage it effectively. We need an effective backstop and random testing has proven to be a deterrent.”
Joseph Hall is a Toronto-based reporter covering cannabis. Reach him on email: firstname.lastname@example.org