Drug Use Impeding Safety and Security Protocols

Police block off access to Weeds, a marijuana dispensary on Danforth Avenue in Toronto on May 26, 2016. (Don Peat / Postmedia Network)

"There are safety implications associated with alcohol and drug use and abuse in the workplace." 
"That has to be appropriately managed and mitigated by employers, and that is not going to change in the future."
Barbara Johnston, employment lawyer, Calgary

"If I have a beer on a Friday night, I'm fit for work Monday morning; it's not an issue. That's the analogy that you're likely going to see, if and when marijuana does get legalized."
Tom Duke, lawyer, Miller Thomas, Edmonton

"I feel that it's not my company's business what I do in my own time. If marijuana were to be legalized, and nothing changes in regard to how they test and why they test, people could be fired left and right for nothing."
"I feel generally the risk is pretty low for me, because I know what I'm doing. The only time I really do it [smoke a joint] is when I know for sure that I'm not going to have to go for a pre-employment test. Say I just took one now; I would probably go home and smoke a joint."
Anonymous oilfield crane operator

"The urine tests can't identify people who are impaired. The tests are just picking up users, not those that are a safety risk."
"If the test for alcohol could only tell if you've had a drink in the last two or three days, would that be justified? Most people would laugh at that because drinking is so commonplace."
"But this is basically what is being done with drug testing."
Scott Macdonald, assistant director, Centre for Addictions Research, British Columbia

"If somebody has an addiction, it's a bit clearer that the employer has a duty to accommodate the addiction."
"Where it can get tricky is if somebody is a recreational users; they don't have an addiction."
Monette Maillet, senior general counsel, Canadian Human Rights Commission, protection branch

Since marijuana has been legalized in 23 states – including Colorado, where this woman was photographed –employers have had to navigate between long-held workplace standards and new legal protections. Photograph: Mark Leffingwell/Reuters

THC, the active ingredient in marijuana, remains in the human system and detectable longer than alcohol would, along with heroin, cocaine and other water-soluble substances. Marijuana, on the other hand, can be detected through urine tests for up to 30 days because THC is fat-soluble. According to scientists, screening urine measures for inactive metabolites and not active substances.

With this in mind, a Vancouver company, Cannabix Technologies, is collaborating with chemists in Florida hoping to develop a breathalyzer test for THC, to replace current detection methods. The experience of a recreational pot smoker who was hired as a receiving inspector at an Alberta oilsands operation -- a safety-sensitive position -- is instructive in this regard. He informed his superiors before taking the urine test that he smoked pot five days before taking the test.

THC stays in a person’s system longer than alcohol, heroin or cocaine. (Mark Yuen / Postmedia News)

When the test confirmed marijuana in his urine, he was fired. He responded by filing a human rights complaint on the basis of discrimination on the grounds of disability. But this man had conceded he was a recreational smoker and for him addiction was not the issue. When workers believe they have been let go on the issue of addiction, they can fall back on the disabilities claim, one that under Canadian law has protected legal status.

A precedent was set by the Ontario Court of Appeal on a different case, finding drug-testing technology is unable to measure an employee's relative intoxication and that being so, random tests do not justify claims when employers attempt to achieve the "Legitimate goal of a safe workplace free of impairment." The above Alberta oilsands case challenged employers working to make certain dangerous workplaces remain safe, bearing in mind the need to avoid allegations their decision making is unfair or discriminatory.

A file photo of a crane in Fort McMurray, Alberta. (Carl Patzel / Postmedia Network)

Suncor Energy has focused its efforts in this regard on a lengthy court battle to achieve their goal of introducing random drug and alcohol testing at its Fort McMurray operations, with the union Unifor representing workers, arguing that random tests violate personal privacy rights even as they fail to increase safety since tests  do not measure impairment, but rather "off-duty conduct".

In response, the company retorts that the measures have been unsuccessful in solving safety concerns at job sites in view of the fact that an "out of control" drug culture permeates society, and this is a deep social issue it has been dealing with. To support its case, the company presented evidence in court of 2,300 security incidents linked to drugs and alcohol over a nine-year period.

Of seven workers who died at their job sites at Suncor from the years 2000 to 2012, three workers were found to have been suffering under the influence of drugs or alcohol. "We wouldn't be pursuing this if we didn't feel it was absolutely necessary", commented Sneh Seetal, Suncor spokeswoman.

In workplaces where the anonymous crane operator felt entitled to his recreational activities, largely involving smoking joints, the game is to outsmart those random checks. The unnamed worker manages that by timing himself so that when a new worksite is being contemplated for him to report to, coinciding with the administration of a urine test, he abstains from marijuana use prior to the test, then resumes his habit immediately the test is taken.

Heavy equipment operators, miners, truck drivers and other safety-sensitive positions are the sole concern of employers subjecting employees to urine tests for the presence of THC. Where the presence of an intoxicant mild enough not to be thought to impair someone in an ordinary workplace with no danger factor involved, employer tests for THC will not likely be an issue once marijuana is legalized in Canada.

But where safety and sobriety loom large in importance to job performance the issue of on-the-job drug testing representing an invasion of privacy and likely discriminatory action to be settled by the human rights commissions they are referred to, are unlikely to get a free pass, given the issues involved. The crane operator who feels justified in taking steps to avoid getting caught as a recreational marijuana user is gambling with safety, feeling he is always in control.

He is also gambling with his future job prospects, with the security a steady job ensures, enabling him to support his wife and two young children. But he is prepared to take that gamble, that if he is somehow caught out he can be fired for a positive test just for having marijuana detectable in his urine, irrespective of whether he was high on the job at the time the test was taken.

No such employees can claim in their self-defence that they had no idea of the potential consequences of their habit. The union representing their interests as a matter of course is obligated to inform employers that failure to pass such tests "can affect your entire career." On the other hand, if and when a detection device more accurate in determining the reflex condition of an employee on the job comes into action, this will all become moot.