With the legalization of marijuana just around the corner (October 17, 2018), regulators and employers remain concerned about the potential impact cannabis may have on an individual’s ability to work safely in a safety-sensitive environment.
To date, the Federal government has kept employers in the dark with respect to how they might be able to establish whether an individual who has consumed cannabis (or any other impairing substance for that matter) is actually “impaired”. However, the Federal government has recently introduced regulations, enforcement mechanisms and governing practices which may clarify this issue for law enforcement officials (and by extension, employers).
Recently confirmed per se limits
The Federal government has recently introduced a new regulation under the Criminal Code which confirms that drivers with more than five (5) nanograms of tetrahydrocannabinol (“THC”), the main psychoactive ingredient in marijuana that causes impairment, per millilitre of blood, will be penalized with compulsory fines of $1,000 as well as jail time after a repeat offense. Further, if a motor vehicle operator’s bloodwork comes back with low levels of alcohol and a 2.5 ng / ml of THC, the individual will face decidedly harsher penalties.
Less severe penalties will be imposed if motorists are in the “warning range” between two (2) and five (5) nanograms of THC in blood, which will carry a maximum fine of $1,000 as well as a criminal record that can be suspended after five years.
Unsurprisingly, the Federal government’s per se limits have attracted significant criticism. Many have argued that the science backing the Federal government’s per se limits is not sound. Many are alleging that the per se limits established by the Federal government are too low, or alternatively, that the penalties associated with impaired driving are too severe.
It should be kept in mind that similar criticism was levied against the Federal government several decades ago when the 0.08, and later the 0.05, Blood Alcohol Content (“BAC”) alcohol thresholds were established.
Dräger Drug Test 5000
After extensive testing, the Federal government has also recently approved a device called the Dräger Drug Test 5000 (“Dräger”) for use by law enforcement officials across the nation. Over the next several months it will be made available to police forces across the country and will test for THC and other drugs such as cocaine and methamphetamine.
Significant criticism has focused on reliability concerns with the Dräger. Earlier this year a study was published in the Journal of Analytical Toxicology that examined the use of the Dräger in Norway. Findings suggested that “the test did not absolutely correctly identify offenders driving under the influence because of the fairly large portions of false-positives or false-negatives compared to concentrations in the blood.”
According to another study, the Dräger has a false positive rate of around 12 to 15 percent. That means more than one in ten people tested using one of these devices could find themselves in a situation where they are falsely accused of drug-impaired driving.
Another concern with the Dräger is that it is impossible to tell, with any degree of certainty, whether any particular food could influence test results if consumed shortly before the saliva test is administered. In the device manufacturer’s literature, it is conceded that it may be impossible to know if any particular type of food will cause a test subject’s body to produce an “analyte” that indicates a positive result.
Further questions have been raised about the effectiveness of the Dräger in Canadian climates because its operating temperature ranges from 1 to 40 degrees Celsius.
Despite the foregoing concerns, the Federal government has elected to push forward with its approved device. The Justice Department has indicated that evaluating proper operation within a range of temperatures, provision of reliable test results, and durability were all part of the testing device approval process.
What does this mean for Employers?
In light of the foregoing developments, employers may wish to wait until the Dräger has been more extensively field tested before considering whether to implement such a device as part of a workplace substance abuse program. Some sources indicate that it may only be a matter of time before the Dräger is deemed to be unfit for the needs of the Canadian legal system. Others suggest that lawyers across the country are mounting Constitutional challenges against the Federal government due to the various reliability concerns identified above.
In that regard, some of you may recall that law enforcement agencies went through a roster of “approved” BAC testing systems before they were eliminated for reasons that are similar to the criticisms levied at the Dräger. The Alco-Sensor IV DWF and the BAC Datamaster C are two of the later examples of breathalyzers which were altogether removed from service shortly after being “approved” by the Federal government.
It is also important to keep in mind the important distinctions between “impairment” in the criminal context and the relevant standard required to discharge an employer’s obligation to “take every precaution reasonable in the circumstances” to ensure workplace safety under the Occupational Health and Safety Act (“OHSA”).
By way of example, the per se BAC limits that apply to driving (i.e. between 0.05 – 0.08 BAC) have been deemed inappropriate for work in a safety sensitive workplace, where even a minute delay or lapse in judgment can lead to significant risk of bodily injury or death. With respect to cannabis, the Human Rights Tribunal of Ontario (“HRTO”) has confirmed that workers do not have an unfettered right to be high at work, particularly if they work in safety-sensitive roles. This has already been decided but was recently revisited in a recent case. The employer in that case was successful in defending its zero-tolerance policy, despite the fact that the applicant had been prescribed medical marijuana by his physician, due to the fact that its workplace was safety sensitive in nature.
So, what does that leave us with? Given the present discrepancies and uncertainty regarding establishing “impairment”, there can be no substitute for clearly communicating expectations to employees regarding impairment in the workplace, particularly if they work in safety-sensitive roles. We would recommend that employers prioritize communicating to employees that it is the company’s expectation that they be “Fit for Duty” whenever they are at work, and particularly if they work in a safety-sensitive workplace.
Set expectations regarding impairment in the workplace with a “Fit for Duty” policy
The most important mechanism for communicating this to employees is a “Fit for Duty” policy. A well-drafted “Fit for Duty” policy ought to:
- Clearly establish an employer’s position regarding impairment, particularly with respect to safety sensitive work where individuals must make “decision critical” judgment calls;
- Ensure that qualified and objective fit for duty evaluations are conducted, where required;
- Determine a service provider and procedures for alcohol and/or drug testing;
- Ensure that all parties at the workplace are appropriately trained to fulfill their duties;
- Ensure that all parties in the workplace are constantly monitoring workers for signs of impairment;
- Establish a process/procedure for removing a worker from work if they are impaired;
- Establish guidelines with respect to the receipt and management of healthcare information, including prescriptions or other health information from employees;
- Provide relevant medical and/or psychological information when required.
When an investigation is conducted into whether or not a worker is fit for duty and involves workers who work in classified safety-sensitive, the alcohol and/or drug testing procedures contained in a well-drafted “Fit for Duty” policy may assist an employer with meeting its obligations under applicable legislation including the OHSA and the Code.
Given that the Dräger may be replaced at some point in the near future, employers may wish to hold off on self-administering drug tests. We would recommend identifying to employees within the “Fit for Duty” policy that any drug testing will be conducted by a third-party drug testing administrator, which will provide accurate and confidential testing.
As always, we will continue monitoring the state of drug testing as it evolves over the coming months. We will provide additional updates as and when they become available. Stay tuned!
Written by Tushar Anandasagar. Research by Lucas Hendsbee.
Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C. He works in all areas of Labour and Employment law, with a particular focus on Workplace Health and Safety compliance and related issues. For further information or discussion, please contact Tushar by email at Tushar@leclairandassociates.ca.
Lucas Hendsbee is a Research Assistant at LeClair and Associates P.C. He provides research and analysis regarding all areas of the law, with a focus on regulatory compliance, policy analysis and emerging legal issues. For further information or discussion, please contact Lucas by email at Lucas@leclairandassociates.ca.