With more relaxed rules around medical marijuana, along with federal legislation looking to legalize marijuana in Canada in 2017, employers might be wondering if the drug could become more of an issue when it comes to pre-employment or on-the-job drug testing.
To some degree, we’re heading into uncharted waters, said Georg Reuter, a partner at Richards Buell Sutton in Vancouver.
“Once marijuana becomes legal, how do we test for impairment by marijuana in the same way we do for driving under the influence of alcohol? What are the legal limits? So, yes, we’re heading into new territory.”
A lot of companies now probably feel caught between a rock and a hard place — deciding whether or not they should tighten the reins, tighten the policies, to exclude users from their payroll or just accept what’s going on and not potentially alienate otherwise qualified employees, said Lucas Richert, a sessional lecturer at the University of Saskatchewan.
“Ultimately, as an employer, do you want someone taking an intoxicant like heroin or cocaine versus marijuana? Well, probably none of the above. But you’re much more likely to catch someone consuming medical or recreational cannabis with a catch-all drug screening.”
In Canada, aside from certain industries such as transportation, most provinces don’t have clear policies or precedents for dealing with marijuana, said Richert.
“The legal architecture, I guess, much like the enforcement of marijuana across Canada, more generally, is rather piecemeal, a patchwork.”
For truckers travelling into the United States, for example, the rules are stricter to match those south of the border.
“They have very complex rule-making in the U.S. that requires all transportation workers who are in safety-sensitive positions to undergo mandatory testing, pre-employment testing being one of those circumstances,” said Barry Kurtzer, medical director and chief medical review officer at DriverCheck in Ayr, Ont.
In Canada, when it comes to drug testing, employers have to be able to identify there is significant risk involved with the job, he said, “to the point where it’s reasonable to assess someone to ensure they have the skill sets and physical capabilities to do the job, and also the ability to react to emergency situations or any other special circumstances that would require someone to be fit and alert and have cognitive functions all intact.”
Beyond that, if there’s a concern about significant misuse and abuse of drugs in the community and workplace, testing may be allowed, said Kurtzer.
“Testing is for the most part focused on… reasonable cause testing, return-to-duty testing following any previous violations related to drug and alcohol and/or rehabilitation and then followup testing, which may be part of a return-to-work agreement or other circumstances laid out by a company in re-engaging a worker following previous workplace violations related to drugs and alcohol.”
And if employers do engage in pre-employment testing, they’re exposing themselves to potential human rights claims that say they are discriminating against people who have a drug or alcohol dependency issue, said Reuter.
If there is testing, it should be done after a candidate has been selected and made an offer of employment, and only if there is a safety-sensitive workplace or specific rules, such as those for truckers or airline pilots, he said.
“There may be justification for testing after the candidate is selected so that you’re not accused of kind of pre-emptively excluding a whole category of people who fail the test.”
If an employer has a safety-sensitive workplace, it has to additionally show there is a track record of incidents that make drug testing the only way to control the problem, said Reuter.
“I think where this gets difficult for employers, people like Suncor would argue, ‘The reason we don’t have a problem is because we’ve have had alcohol and drug testing program so people are aware of that and don’t show up on the job impaired because they know they might be pulled out of the line and tested.’ So it’s a bit of a chicken and egg problem.”
But even when testing is undertaken, there are challenges behind the process. For one, people have complained about “false positives” — even though that concept is not really correct, said Kurtzer.
When it comes to workplace testing, there are two types of tests carried out, he said. The first is an initial screening to identify whether certain drugs are present in an analytical specimen.
“All it’s doing is identifying that there’s something there that needs further recognition — it’s not determining that the test is positive.”
If the test is “non-negative,” the specimen is sent off to the lab to provide confirmation testing. And every compound has its own molecular fingerprint, said Kurtzer, “so there is no confusion between an innocent compound and illicit compound, for example, in a urine specimen. So there is no such thing as a false positive — everything is verified at the laboratory.”
But workplace screening is a mediocre indicator of performance in the workplace because it doesn’t actually test for impairment, said Richert.
“The drug screening tests search for… byproducts excreted from the body after the drug’s been ingested, so what they’re looking for is something that’s happened in the past as opposed to performance in the workplace in the present.”
With alcohol testing, an employer is able to determine fairly accurately current impairment when it comes to motor skills and the ability to function in any kind of safety-sensitive environment, said Reuter.
“On the other hand, drug testing and things like particular testing for marijuana, doesn’t correlate at all well with the employee’s current state of impairment, so there may well be residual test results that test positive long after the person’s consumed the marijuana and may no longer be currently impaired.”
Canada is focused on immediate impairment as opposed to risk-taking behaviour, and impairment can include withdrawal effects such as a hangover, said Kurtzer.
“Impairment from a medical perspective is not just immediate impairment; it’s the after-effects, meaning the hangover effect, as well as the long-term complications from the misuse of drugs and alcohol. So… that’s why random drug testing has not really been embraced here in Canada because the focus always seems to be on immediate impairment as opposed to looking at the broader range of risk-taking behaviour.”
Another problem around testing is acceptable limits, which have not yet been established.
“The THC (tetrahydrocannabinol) limit that is acceptable for impairment in driving is still being worked out, so HR managers don’t have a benchmark to work with necessarily,” said Richert. “It’s really up in the air because we’re searching for that magic number.”
“The problem with the catch-all tests is that usually a lot of other substances and intoxicants — alcohol, cocaine even heroin — can be metabolized and excreted in 24 to 48 hours whereas THC remains in the body and is recognizable for sometimes up to 30 days.”
Medical vs. recreational
The situation is complicated by the fact there is medical marijuana and recreational marijuana, he said.
“So if you’re authorized by a physician to be taking medical cannabis, then there has to be certain allowances, duties that are made for the given employee.”
And when it comes to medical marijuana, people wrongly assume a prescription for medical marijuana exempts them from any other considerations or policies an employer may have — when they should be treated the same as someone taking prescription medication with a potentially impairing effect, said Reuter.
“It’s definitely (an issue) that comes up more frequently.”
If a test is positive and the person says it was recreational use, a termination might be justified if there’s a clear policy that prohibits the use of the drug on the job, said Reuter.
But a person can’t automatically be fired.
“If the use is based on some kind of addiction problem, then you have an obligation to accommodate the person,” he said.
For the most part, it’s not the legality or illegality of marijuana that’s a concern for employers, it’s the fact it could impair a person’s ability to do her job, he said.
“The analogy would be to alcohol — clearly, employers can ban the use of alcohol on the job if there’s a safety concern, in the same way they could ban the use of marijuana.”
But, right now, the only legal use of marijuana is still as prescription medication, said Reuter.
“As an employer, you should really treat marijuana that’s used by prescription in the same way that you would treat other prescription medications that might have an impairing effect.”
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