Employers putting policies in place to restrict before-work usage
As for workers, seven per cent said they are likely to use cannabis before work, while four per cent will consume it during work hours, found a recent survey of 1,000 people, 500 of whom are managers, by Ipsos, commissioned by ADP Canada.
But some employees might not have a choice: As the Oct. 17 deadline approached for the legalization of recreational cannabis in Canada, several employers — such as Air Canada, the RCMP, and the Edmonton police — announced they would be placing restrictions on cannabis consumption before work.
Policies are being amended to prohibit use of any kind, so that means zero tolerance, not just impairment, said Niki Lundquist, a lawyer at Unifor in Toronto.
“I would say zero-tolerance policies for impairment are absolutely legitimate, but for use, I don’t think so, in light of the fact that cannabis is going to be a legal substance.”
The restrictions around before-work usage stretch anywhere from 24 hours for federal prison guards to 28 days for safety-sensitive positions at WestJet.
Some restrictions are OK, as it’s been shown impairment can last up to four hours after consumption, said Lundquist.
“If (employers) can actually link their measures to the science behind that, I don’t think they would find opposition to that. Workers’ organizations want safe workplaces, and so do workers.”
However, 28 days is an arbitrary number, she said. “There is no chance somebody is impaired for 28 days, zero chance of it. That being said, I understand that the 28 days is related to a clean urinalysis test, so the airlines are going to do whatever they think is necessary to make sure that there’s no hint of impairment.”
Over the next 18 or 24 months, there’s going to be a lot of litigation both in civil arenas and in the criminal courts with people fighting the arbitrariness of the standards imposed, she said.
“This kind of change is a significant one on both a legal and policy level, and people need direction. And employers are, in my view, overstepping because they don’t have appropriate direction.”
“They have these tools already and to me it’s really interesting that a lot of new policies or amended policies purport to expand on that to impose random testing, and I honestly feel as though it’s the employer’s attempt to relitigate cases that have been lost and rejected random testing, and it’s an excuse,” she said.
“Both levels of government have left people in a really tough situation because what is inevitably going to happen is workers are going to test positive and they’re going to be fighting for their livelihoods — regardless of whether they’re impaired or not.”
Positions such as airline pilots or enforcement officers are considered safety-sensitive, so there is some legal ground to prevent employees from attending the workplace if they’re not fit for duty, said Nadia Halum Arauz, an associate at MacLeod Law Firm in Toronto.
“But in terms of the more stringent policies… as far as I’m aware, those are internal policies that employers are creating. I’m not aware of any external law that would justify those kinds of policies,” she said.
“Those kinds of policies reflect a very prohibitionist mindset and (employers are) sticking their head in the sand and not wanting to accept that legalization is coming and there are better ways to deal with that. So, yes, I think we can expect to see some challenges in that regard.”
Questionable science
The science just isn’t there yet to support these measures, said Lundquist.
“There is no way to measure accurately whether someone has used cannabis in the last 24 hours; it may be you can measure in the last four hours or six, depending on the test, but there’s not a test I’ve ever seen that can show usage within the last 24 hours, so what is that standard related to?” she said.
“To me, it’s an appearance of (employers) doing something, and not actually doing something, like creating awareness campaigns in your workplace about safety or making sure people are unimpaired both by cannabis and things like fatigue. So there are measures employers can adopt, and instead they’re adopting arbitrary measures.”
Testing for cannabis is not at the same level, scientifically, as testing for alcohol, said Arauz, “so that is one of the difficulties that employers will face is that detection doesn’t necessarily mean impairment.”
Employers with safety-sensitive positions have the ability to set those types of policies and rules, and then hold employees accountable, said Alison McMahon, founder and CEO of Cannabis at Work in Edmonton.
“Whether you’re safety-sensitive or not safety-sensitive, being impaired in the workplace is not allowed, so employees should not be bringing cannabis to work, they should not be using it at work, they should not be coming to work impaired.”
But the challenge is there are no tests for active impairment, only ones that confirm recent use.
“The challenge with urinalysis is it’s a very broken test for what we’re actually trying to measure here. We’re trying to measure impairment and that is a test which is going to confirm to us somebody has a metabolite in their system… and we’re potentially punishing somebody for recent use — but recent use that could be several weeks ago,” she said.
“I’m definitely seeing an interest from employers to move away form urinalysis because they understand the limitations of that tool. But it’s not necessarily that simple — urinalysis is really baked into a lot of our health and safety process and policies.”
A saliva swab can provide a shorter detection tool, so that test is being used more often, said McMahon.
“In either case, it’s still not telling us if somebody is impaired or not so… it’s not a perfect solution. But until the technology around drug testing catches up, it’s really the only detection and enforcement tool that we have,” she said.
“That’s the challenge, for employers that are saying, ‘We want to move ahead with a zero-tolerance approach.’ If they’re not doing drug testing, my question is: How are you going to enforce it? Aside from what we call reasonable suspicion methodology, which is more observation-based… if you’re not using drug testing, really, you have no way to enforce a zero-tolerance policy.”
It’s important for employers to be as proactive as possible, and either create policies or amend policies to reflect the new legalization of cannabis, said Arauz.
“(It’s also about) training managers to spot the symptoms of impairment, taking a proactive approach to set expectations, and training the workforce.”
Instead of taking such a hard-nosed approach, employers should look at the evidence around testing for cannabis, she said.
“Currently, you can test for impairment after an accident or near miss or if there are reasonable grounds to believe someone is impaired. So a combination of the two approaches, I think, would be better.”
Employers have the tools available to ensure workers are not impaired at work, said Lundquist.
If it’s a safety-sensitive position, for example, that can include reasonable-cause testing, and post-accident or post-incident testing. And they can impose testing as part of an after-care program when there’s an acknowledged substance abuse issue or disorder.
At this point, employers should be saying to employees “Here’s what legalization means, and here’s what it doesn’t mean, and there is zero tolerance to impairment in the workplace, period, for anybody,” said McMahon.
“While cannabis is new and in some cases, we’re definitely lacking some science and hard, black-and-white answers, we’ve managed substances in the workplace before — recreational… illicit… medical — and what I always try to remind employers is ‘You’ve actually probably dealt with this before in some fashion, so yes it has some complexities to it, but it is manageable.’”
This article originally appeared in Canadian HR Reporter, a Thomson Reuters business.
