Legalization of Cannabis in Canada… Testing & Zero Tolerance
Recreational cannabis is now legal in Canada. Over the last few weeks, we outlined the respective rights and obligations of both employees and employers, key policy points, as well as how to identify and address employees who may be impaired at work. This week, we discuss a few additional topics that are on the minds of many employers: drug testing and zero tolerance policies.
In determining whether drug testing is appropriate for your workplace, it’s important to consider safety, human rights and privacy legislation, as well as the culture of your organization overall. Due to the potential for discrimination on the basis of disability, drug testing programs should only be used in safety-sensitive environments for safety-sensitive positions, and when accompanied by a clearly communicated policy. Policies should clarify the circumstances under which screening would be conducted, such as: pre-employment, reasonable cause, post-incident (e.g. accident or near-miss), and return to work/follow-up.
If you intend to screen for cannabis, keep in mind that it can be detected in the bloodstream days, or even weeks, after use – long after the individual would no longer be impaired (assuming no further use). While the federal government has published acceptable levels for motor vehicle drivers, no test currently exists that accurately and reliably measures an individual’s ability level as a result of cannabis use. The presence of THC itself does not directly correlate with impairment.
Although drug testing may be a useful tool, it should not be used as a substitute for ensuring a culture of safety and a comprehensive accident prevention program. Further, while there is a clear case for a higher standard in safety-sensitive workplaces, it’s critical to be very cautious with zero tolerance statements. Once again, this is particularly challenging where cannabis is concerned. Not only is it a legal recreational drug, but it’s also widely used as treatment for medical conditions and disabilities. A zero tolerance policy could be potential grounds for a discrimination claim under human rights legislation.
In summary, given the very sensitive nature of both topics, we highly recommend employers seek out HR and/or legal expertise when implementing drug testing programs and zero tolerance policies.