WORKPLACE DRUG TESTING REMAINS IN LEGAL LIMBO

OTTAWA • When the Liberal government introduced its cannabis legalization bill in the spring of 2017, it made sure to simultaneously introduce another bill with harsh new penalties and enhanced police powers to crack down on stoned drivers. But there is nothing in either piece of legislation that addresses another big issue around cannabis: testing for it in the workplace.

Industry groups have long complained that Canada lacks regulations for testing workers for drug impairment. This is particularly true for employers who want to institute random testing for safety-sensitive positions, such as pilots, crane operators and long-haul truck drivers.

“The bills do not speak directly to the workplace and public safety concerns that we have been raising with the government for about 18 months now,” said Derrick Hynes, executive director of Federally Regulated Employers — Transportation and Communications.

“There are numerous arbitrations, numerous court cases... There’s confusion in this space over what the rules are, what is allowed, what is not allowed, how is it to be done.”

Employers and labour unions have struggled with this issue since long before cannabis legalization was on the horizon, as Canada’s human rights tribunals and labour arbitrators have generally viewed random drugtesting programs as a violation of the privacy rights of workers.

Hassan Yussuff, president of the Canadian Labour Congress, said there needs to be more public education around cannabis, but legalization itself doesn’t mean Canada needs new rules around testing.

“Recreational cannabis becoming legal doesn’t change the fact that you can’t work in an impaired fashion, doing your job,” he said. “That’s always been the rule, and that rule will not be changing as a result of the legalization.”

The government is well aware of the issue; Liberal MP Bill Blair, who co-ordinates the marijuana file, recently told CBC they’ve examined it “very closely,” and that mandatory testing is “possible” in the future for certain positions.

In addition, a special committee on workplace impairment that features representatives from the government, labour unions and employers has been formed and is meeting regularly. The committee “is examining how to balance human rights and privacy rights with safety specifically as it pertains to impairment at work,” said a spokesperson for Employment Minister Patty Hajdu.

While everyone agrees that having a safe workplace is important, there remains staunch divergence between unions and employers on whether any type of random testing program should ever be allowed.

In the absence of legislation and regulations setting out a testing regime, the controversy has played out in human rights tribunals and the courts — and there are conflicting messages.

The Supreme Court of Canada ruled on a case in 2013 involving Irving Pulp & Paper, concluding that a random drug testing policy would only be permissible if it could be shown there was a generalized problem of drug or alcohol abuse. Otherwise, workers could be individually tested if there was cause to do so, such as a workplace accident.

That ruling doesn’t sit well with employers, Hynes said. “Does that mean we’re going to wait for numerous accidents and serious incidents before we put a policy in place? That seems somewhat backwards to us.”

Other cases working their way through the courts involve safety-sensitive jobs. The Toronto Transit Commission recently won in Ontario Superior Court in a case over its random drug and alcohol testing program for drivers. Oil company Suncor initially lost an arbitration case when it tried to institute random drug testing; that arbitrator ruling was then quashed by the Alberta Court of Queen’s Bench and sent back for a new hearing.

The uncertainty means Canadian companies are on shaky legal ground if they try to bring in any type of random testing program.

“Drug and alcohol testing can raise questions not only about the human rights of employees but also their privacy rights as well as other legal and regulatory requirements,” reads the disclaimer on a recent “Impaired at Work” guide put out by the Canadian Human Rights Commission. “An employer considering drug and alcohol testing should seek legal advice.”

With cannabis set to become legal, the testing issue remains in limbo until the government decides to take action. Asked what employers should be doing in the meantime, Hajdu’s office pointed to the commission’s advice.

“The Canadian Human Rights Commission recommends that employers, wherever possible, rely on observation, supervision and frequent face-to-face conversations as the more effective ways to recognize when an employee is impaired,” it said. “However, the CHRC states that employers must always use a safety-first approach.”

Labour unions are fine with that stance, as their position has won more often in the courts and tribunals.

Yussuff argues that education is a better deterrent than random testing anyway.

“A deterrent is to continue to remind people they need to work in a health and safety environment, free from people being impaired and coming to work in a way that jeopardizes the safety of people around them,” he said.

But Hynes said he doesn’t understand how the government can insist that workplace testing rules need no changes while impaired driving laws get a total overhaul.

“Why not the same sort of requirement for someone piloting an aircraft or managing air traffic control or operating a crane?”

CANNABIS BECOMING LEGAL DOESN’T CHANGE THE FACT THAT YOU CAN’T WORK IN AN IMPAIRED FASHION... THAT’S ALWAYS BEEN THE RULE. — HASSAN YUSSUFF, CANADIAN LABOUR CONGRESS

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