SAFETY VS. PRIVACY

The advent of recreational marijuana presents a quagmire of contradictions for employers to navigate.

An Alberta man raising a young family smokes pot every chance he gets after working hours are over, but he knows he could lose his job, and maybe damage his career, over his habit.

The sole income earner for his wife and two children, aged three and four, he’s a little worried he might get caught, given that he often faces drug tests before joining new work sites, which can happen several times a month.

The crane operator, who mainly works in oilfields, has beat the system so far by getting a good sense of how long he’ll remain at a given site before he has to move on and take another test. When he suspects his job site is changing, he stays off the dope.

“I feel that it’s not my company’s business what I do in my own time,” said the worker, who spoke on condition of anonymity.

Like many other Canadian workers, he could be denied access to job sites and potentially fired for testing positive for marijuana, even though the urine screen can’t confirm whether he was high on the job. It only indicates use in the past month or so. Still, the man’s union would be obligated to inform future employers for some time that he failed the test, “which can affect your entire career.”

“If marijuana were to be legalized, and nothing changes in regards to how they test and why they test, people could be fired left and right for nothing,” he said.

Workplaces like his where safety — and sobriety — are critical have largely been the exception to the rule in Canada that on-the-job drug testing is considered an invasion of privacy and potentially discriminatory.

Those who work in safety-sensitive positions, such as heavy equipment operators, miners and truck drivers, have often been subjected to varying degrees of drug and alcohol testing, from pre-hiring screens to controversial random tests. Even these have been the targets of legal challenges, with some success.

Still, workers in these industries may not see any easing in drug-testing requirements should Ottawa legalize recreational pot, according to employment lawyers and drug testing officials.

“There are safety implications associated with alcohol and drug use and abuse in the workplace,” said Barbara Johnston, a Calgary employment lawyer who has represented companies in drugand alcohol-testing court challenges. “That has to be appropriately managed and mitigated by employers, and that is not going to change in the future.”

Under a regime of legalized pot, employers not involved in hazardous job sites will likely treat marijuana the same way they treat alcohol, said Tom Duke, a lawyer in Miller Thomas’s Edmonton office.

“If I have a beer on a Friday night, I’m fit for work Monday morning; it’s not an issue,” Duke said. “That’s the analogy that you’re likely going to see, if and when marijuana does get legalized.”

A critical concern in many arbitration hearings and court cases challenging drug tests is the failure of screening technology to measure intoxication.

THC, the active ingredient in marijuana, is fat-soluble, which means it stays in the system longer than alcohol, heroin, cocaine and other water-soluble substances. Urine tests can detect traces of pot in the body for up to 30 days, but the screens measure inactive metabolites, not active substances, according to scientists.

Cannabix Technologies, a Vancouver company, is working with Florida chemists in an attempt to develop a breathalyzer test for THC, a technology many players hope will one day replace the status quo.

“The urine tests can’t identify people who are impaired,” said Scott Macdonald, assistant director at the Centre for Addictions Research of BC.

“The tests are just picking up users, not those that are a safety risk,” he said. “If the test for alcohol could only tell if you’ve had a drink in the last two or three days, would that be justified? Most people would laugh at that because drinking is so commonplace. But that is basically what is being done with drug testing.”

John Chiasson, a recreational pot smoker, had been hired as a receiving inspector at an Alberta oilsands operation in 2002. He was fired more than a week later when his employer received the results of his pre-employment drug test, which found marijuana in his system.

Chiasson, who had been hired in a safety-sensitive position, told his superiors at Kellogg Brown & Root Co. that he had smoked pot five days before his test. After he was fired, he filed a human rights complaint alleging discrimination on the grounds of a disability.

This type of complaint is traditionally made by workers who believe they were wrongly fired for their addictions, which can be considered disabilities. Chiasson didn’t claim he was addicted, insisting he toked on his own time and never at work.

The case rose all the way up to the Alberta Court of Appeal, which found the company policy appropriately considers any drug user “a safety risk in an already dangerous workplace.”

The panel declined to follow a decision by the Ontario Court of Appeal, which considered random drug testing at Imperial Oil’s Sarnia refinery. In its 2000 decision, the court found drugtesting technology fails to measure an employee’s relative intoxication and that random tests could not be justified to achieve the “legitimate goal of a safe workplace free of impairment.”

The Chiasson case underlines a challenge for employers attempting to ensure their dangerous workplaces are safe while avoiding allegations they are unfair or discriminatory, said Monette Maillet, senior general counsel at the Canadian Human Rights Commission’s protection branch.

“If somebody has an addiction, it’s a bit clearer that the employer has a duty to accommodate the addiction,” Maillet said. “Where it can get tricky is if somebody is a recreational user; they don’t have an addiction.”

Oilsands giant Suncor Energy has been fighting a lengthy court battle to introduce random drug and alcohol testing at its operations in Fort McMurray. The union argues random tests violate privacy rights while failing to increase safety because they don’t measure impairment, only “off-duty conduct.”

Unifor lawyer Niki Lundquist said Suncor already tests workers before hiring them or allowing them onto its sites, and can order screens when officials have reasonable cause to be suspicious or believe impairment played a role in workplace incidents.

The company argues these measures have failed to stop safety concerns at its job sites, given claims it is dealing with an “out of control” drug culture. In court, the firm presented evidence of nearly 2,300 security incidents related to drugs and alcohol over nine years. Three of seven workers who died on the job at Suncor from 2000 to 2012 were under the influence of drugs or alcohol, according to the company.

“We wouldn’t be pursuing this if we didn’t feel it was absolutely necessary,” said Suncor spokeswoman Sneh Seetal.

The Alberta crane operator with two young children at home suspects there may be more court battles ahead as recreational pot smokers like him argue their employers cannot dictate what they do on their own time.

For now, the 27-year-old father does his best to avoid suspicion.

“I feel generally the risk is pretty low for me, because I know what I’m doing,” he said. “The only time I really do it is when I know for sure that I’m not going to have to go for a pre-employment test.

“Say I just took one now; I would probably go home and smoke a joint.”

I FEEL THAT IT’S NOT MY COMPANY’S BUSINESS WHAT I DO IN MY OWN TIME.