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Smoke Screen: Testing remains in a legal vacuum

Posted: June 11, 2018 by John G. Smith

TORONTO, Ont. — July 1 has secured an unusual place in the story of marijuana. The national holiday was once reported as the deadline to legalize recreational weed. That didn’t happen, of course, but Canada Day is still left as the deadline for Ontario’s Cannabis Act, which established related rules for drivers and sellers alike. Canada’s cross-border drivers even began facing their mandated drug tests on July 1, 1996.

Despite the flurry of regulatory activity in the midst of it all, Canada still lacks clear drug testing rules. Today’s workplace tests exist in a legislative vacuum. Fleet policies must instead be based on various arbitration decisions and court challenges, many of which involve “safety-sensitive” industries that have nothing to do with steering wheels.

Barb Butler, one of Canada’s leading experts in workplace testing policies, has had a front-row seat to many of them, including the key human rights hearing that focused on Salvatore Milazzo, a bus driver with Autocar Connaisseur. He lost his job in August 1999, after testing positive for cannabis metabolites, and argued his rights were violated because the fleet failed to accommodate a perceived drug dependence.

The landmark case was about more than his rights, though. Butler, who was serving as a witness, remembers being asked if there was a difference between traveling north-south or east-west when it came to safety. None at all, she replied.

The guidance that followed from the Canadian Human Rights Commission was clear. “For the U.S. carriers that come to Canada, and vice versa, we have to comply with their laws,” explains Carole McAfee Wallace of Fernandes Hearn, a Toronto-based law firm. “Where you see the challenges, and the case law that flows from it, is when an employer doesn’t respect human rights.”

It’s precisely because of such challenges that the Canadian Trucking Alliance (CTA) has joined other federally regulated employers in a call for clearly defined alcohol and drug testing regulations.

But recreational marijuana is widely expected to come first.

The necessary tools

“What we’re asking for are the necessary tools, as employers, to do our part,” says Jonathan Blackham, CTA’s director of policy and public affairs. “It’s about pre-employment, post-incident, reasonable suspicion, and random testing.”

The alliance is among voices represented by FETCO (Federally Regulated Employers – Transportation and Communications), which is asking for a law prohibiting safety-sensitive workers from consuming marijuana in the workplace, or being under the influence while on duty. It wants recreational marijuana delayed until experts can agree on a standard and testing approach for impairment. Then it wants legislation to allow federally regulated employers to conduct random drug and alcohol tests.

“Once cannabis is legalized, this problem is only going to get worse and more difficult to manage,” says Derrick Hynes, executive director. “We would like to see the federal government show some leadership in this space that is sorely lacking.”

The group has been calling for the change for almost two years. “We’re not getting a great deal of traction,” he admits, noting that hopes are now in the hands of the Senate.

“The rules are going to have to be fair and consistently applied for all employees,” Butler says, referring to the need to balance testing with the need to protect those who suffer addictions. “That balance still has to be there. You can’t be like in the states, where it’s random, random, random.”

While such tests exist, employers are still in a tricky position. “There’s no clear do’s and don’ts. What we have is sort of a patchwork of cases that at times can be contradictory or conflicting,” Blackham explains. “Even when they’re clear, all they’re speaking to is the specific case at hand, which in most cases are not a trucking company.”

“There are arbitrations and court cases that point in many different directions,” adds Fetco’s Hynes.

Many of the drug and alcohol testing programs have survived in non-unionized environments, but they’re based on case law driven by union challenges, says Shaun Parker, an associate in the Calgary law office of Osler, Hoskin and Harcourt. “Non-union employees are left with complaints to a privacy commissioner.”

One of the most widely cited legal decisions involved Irving Pulp and Paper mill workers, in a case that made its way to the Supreme Court of Canada. The ultimate ruling found that those who want to introduce random testing need to demonstrate evidence of a problem. But dissenters in the case, including the Chief Justice, noted the issue should be addressed through legislation.

“For the last few years privacy rights have been prevailing, but I think we’ve seen a high-water mark with the Irving decision,” Parker says. “You’re starting to see labor arbitrators recognize there are significant workplace risks.”

Proving a need

But those who want to introduce testing programs were hardly presented with free reign.

“A unilaterally imposed policy of mandatory, random, and unannounced testing for all employees in a dangerous workplace has been overwhelmingly rejected as arbitrators as an unjustified affront to the dignity and privacy of employees unless there is reasonable cause, such as a general problem of substance abuse in the workplace,” the Supreme Court said in 2013. In other words, an employer has to demonstrate a need for the tests.

The case between Communications, Energy and Paperworkers Union of Canada Local 30 and Irving Pulp and Paper concluded that those who want random testing need to establish a workplace is dangerous, and that there is a general problem with substance use. The eight documented incidents of alcohol consumption or impairment over 15 years were not seen to be enough.

Just how big does a general problem need to be? Suncor believed it had a problem with drug use in Wood Buffalo, Alta., citing eight deaths, but an arbitrator disagreed. The courts overturned the grievance, and now that’s being appealed. In contrast, an arbitrator upheld random alcohol testing by the Greater Toronto Airport Authority in 2007, citing a “pervasive problem”. Testimony in that case involved stories of employees seen drinking on the job or storing alcohol at work. Another case at an oil refinery allowed for random tests after 2.7% of employees reported near misses relating to substance abuse. The Communications, Energy and Paper Workers Union blocked random alcohol tests at Petro-Canada in 2009. Incidents that it cited had included drivers in one Ontario location, but none of those cases involved the terminal represented by the union local.

Some of the legal dramas have dragged on longer than multiple storylines of Law & Order. The Alberta Court of Appeal recently upheld an injunction by the Court of Queen’s Bench that put an end to random alcohol and drug testing at Suncor Energy facilities near Fort McMurray. That case was made by Unifor Local 707-A, representing 3,000 workers, who have been fighting the random tests since they were first announced in 2012 — arguing that the testing violates human rights and privacy. Now there’s a question of whether it will go to the Supreme Court of Canada.

Transit control

The Toronto Transit Commission has pushed forward with its testing regime despite an ongoing arbitration challenge put in place by the union representing its workers. A random testing policy was developed in 2014 and held in limbo while the union opposed a related fitness-for-duty policy established in 2011, but an increase in positive tests for drugs and alcohol led to a decision to roll out testing in 2017. A union court injunction failed, and the testing began May 8, covering 10,000 people in safety-sensitive roles ranging from drivers to executives with decision-making power.

The random checks produced two positive tests on the first day. One for drugs and another for alcohol. There were 35 positive tests before the program’s first year concluded, says spokesman Brad Ross. “Marijuana is the majority drug that people do test positive for,” he says. And most of those employees lost their jobs. There’s a duty to accommodate those with an addiction, but only if employees come forward with that information before a positive test.

Ross believes it’s proving to be a deterrent. Between last May and this January, 3% of the random tests came back positive. Since then the share has dropped to 1.5%.

But the arbitration in the TTC case continues to drag on. “I don’t believe we’ve even had the opportunity to leave evidence yet,” Ross says. “It’s been seven years. We don’t see an end in sight to it. So we’re going to just continue forging ahead.”

Blackham refers to the TTC as “trailblazers” in the issue. “In the absence of any clear direction, they’re forging ahead with what I assume they believe to be the right thing to do – and we would certainly commend them for that.”

Besides, small truck fleets would struggle to finance such challenges on their own.

More failed tests

Even though medical marijuana is already legal, Blackham expects “across the board” increases in positive drug tests once recreational marijuana is allowed.

Quest Diagnostics reviewed 10 million drug tests in the U.S. and found that positive results for marijuana increased in states where the drug was legalized for recreational use – including Nevada (up 39%), California (20%), and Massachusetts (11%). “These increases are similar to the increases we observed after recreational marijuana use statues were passed in Washington and Colorado,” added Barry Sample, the company’s senior director of science and technology.

It means that now is the time to polish any related programs.

“What companies should be doing is sitting down and taking a close look at what their drug and alcohol policies are, what they have in place,” Blackham says, suggesting that many policies were established in the mid-to-late ‘90s and largely forgotten.

Butler has been busy doing that very thing. “I’ve been updating and helping expand quite a number of policies lately,” she says. And her related presentations have become a mainstay at industry conferences across Canada.

McAfee Wallace has seen a range of policies during her reviews. Some of the documents include text that has been cut and pasted from other employers, including the company names. Some of this comes as consultants move from job to job, she says. But that’s not the only problem. “They refer to U.S. law. They have outdated laws. They have jurisdiction clauses that are not relevant.”

“Make sure there hasn’t been some change in the law or something hasn’t been deleted inadvertently,” McAfee Wallace adds. “If you borrowed it from the states, you’re in real trouble.”

 


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