Groundwork needs to be laid to test for drugs

REGINA, SK –  Cannabis is coming, and fleets that want to randomly test drivers to make sure they are not coming to work under the influence will have to start laying the groundwork now.

Meghan McCreary, a lawyer with MLT Aikins, was at the Saskatchewan Trucking Association’s (STA) annual general meeting to help fleet owners learn how to navigate the expected July 1, 2018 legalization of marijuana and learn how it will affect their business.

Just because the drug is legal, doesn’t mean it should be allowed at work, said McCreary. The Ontario government announced its first 14 cannabis distribution stores at the beginning of November, and reiterated the substance would not be allowed to be sold next to alcohol, to children under the age of 19, and would not be allowed to be carried or used at work. It is expected that other provinces will institute similar regulations.

McCreary told fleet owners they are also within their rights to put policies in place that would forbid the use or possession of cannabis on company property or time.

McCreary said carriers transporting goods across the border are allowed to administer drug tests in order to remain compliant with U.S Department of Transportation regulations, however other Canadian carriers exist in a legal gray area when it comes to testing for substances.

While there is no current law in Canada preventing employers from using random drug testing, there is no law specifically allowing it, either. All laws surrounding the issue exist through case law stemming from incidents where employers have been taken to task for possible human rights violations.

Employers who want to avoid such challenges in the future need to demonstrate their workplace is dangerous – McCreary says the safety sensitive nature of being a commercial driver would qualify – and they have to be able to demonstrate there is an existing problem with drugs and alcohol, which means a regular testing program must already be in place.

Testing programs companies are currently allowed to use for employees in safety sensitive positions include pre-employment testing, testing if there is reasonable cause to suspect impairment, and testing after an incident or near-miss.

McCreary said random testing has only been upheld for companies that have the other testing programs in place for a reasonable length of time before they make the switch, and that those tests proved an existing drug or alcohol problem with a significant number of employees in safety sensitive positions.

McCreary says legal issues may arise because Canadian courts have not been able to determine exactly what percentage of employees constitutes a significant number in order to make random testing necessary, however a decision Irving pulp and paper mill made to test with 20% of employees regularly showing positive for drug or alcohol use at work was upheld. What is clear is that “significant” is not just a matter of a few positive tests.

McCreary says courts have upheld decisions for employees that require a disability accommodation for addiction, but only if the employee discloses the addiction to the employer and seeks treatment prior to being caught in tests. Terminations have been upheld against those employees that use addiction as a defense for being caught during testing, but had not previously disclosed the addiction or asked for help.

Regular testing programs can also be implemented for those employees who have previously been accommodated for an addiction and treatment. If the employee is found to be in possession of substances or has been caught using at work, the employer can terminate them for being in violation of their treatment and disability accommodation.

President of the Canadian Trucking Alliance (CTA) Stephen Laskowski was on-hand for the talk and says the trucking industry needs mandatory testing for its drivers. He is urging governments to formalize regulations and stand behind fleets who implement programs.

He reminded members that there is a zero-tolerance policy in the United States for marijuana users, even if the drug is legal in Canada. Although some states have made it legal as well, federal U.S. regulations prohibit the use or possession of the drug and Laskowski says law enforcement officials south of the border won’t be lenient on Canadians caught with the substance.

Laskowski is also calling for a zero-tolerance policy for cannabis use in drivers up here, including those who use it for medical reasons. He said those with insulin dependent diabetes cannot be drivers, and the same should apply to medical marijuana users.

The CTA, the STA, and other provincial associations are continuing to lobby governments for more supports and clarification for the industry.