Testy workplaces

Marijuana legalization will increase the likelihood of employees using the drug, but current testing technology to determine impairment is lagging behind

Testy workplaces

By Jeffrey R. Smith

After a lot of talk and a lot of ink used to discuss the coming legalization of marijuana in Canada, it’s finally happening. The Canadian Senate on June 19 voted to approve Bill C-45, the legislation passed earlier by Parliament legalizing marijuana across the country. It’s expected the bill will come into force sometime in September, giving the provinces three months to implement their distribution and regulatory schemes.

However, one issue that could lead to some problems is how marijuana impairs users and how that impairment can be tested. With alcohol, impairment can be detected through tests such as breathalyzers, urinalysis, and blood testing. However, it’s not quite so easy for marijuana used.

There have been many studies on how long someone can be impaired by marijuana, and you might get different answers depending on who you consult. The tricky part is that marijuana can remain in someone’s system for days while the impairment has worn off, so traditional methods of testing through urine and blood samples can only show that the drug has been used recently, not if the user is currently impaired. This raises the issue of what not just law enforcement authorities who suspect a driver is impaired with marijuana can do, but also employers in safety sensitive workplaces.

There have been many legal battles over drug testing of employees, and after a lot of back-and-forth decisions, it’s been established that employers can use drug and alcohol testing following a workplace incident or if there’s a reasonable suspicion of impairment. Random testing may be permissible in a safety sensitive workplace if the employer can establish that there is a real problem with drug use.

However, this brings us back to the problem of the limits of testing for marijuana. If the workplace is dangerous and the employer has a zero-tolerance policy towards any drug use regardless of the level of impairment, the current marijuana testing technology may suffice. However, anything less can lead to a quagmire involving proof of misconduct, progressive discipline, unjust dismissal, and so on. And this is likely going to become even more of an issue for employers as marijuana becomes more widely available and potentially more widely used with legalization.

A recent Newfoundland and Labrador arbitration case (April 30, 2018) underscored the concern over marijuana testing technology when it comes to determining employee impairment when at work. A worker applied for a job on a hydroelectric dam project and was rejected when the employer learned he had a prescription for medical marijuana. Though the worker was qualified for the positions and his doctor felt his level of impairment over the course of the day after he used marijuana would not affect his job performance — the doctor recommended he avoid certain activities such as driving for four hours after inhalation or six hours after oral ingestion — the position for which he was applying was safety sensitive and the employer was concerned existing tests wouldn’t be able to determine if he was truly impaired or not.

The union claimed the employer failed to accommodate the worker’s medical prescription, but an arbitrator agreed with the employer that the employer was entitled to have reasonable medical information sufficient to determine how, if at all, the worker could safely work. Since available drug tests couldn’t provide that information — whether the worker was impaired or not after taking his medical marijuana — it would be undue hardship for the employer to accommodate the worker in safety sensitive positions, the arbitrator said.

With medical prescriptions for marijuana available for some time now, the chance of employees having used the drug has increased. Now, with full legalization, the chance has increased even more. And until drug testing technology reaches the level of alcohol testing — when it can definitively identify current impairment — it may be a bumpy and uncertain ride for employers with safety sensitive workplaces or other circumstances where employee impairment can be damaging to safety or productivity.

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