Recently, a study in the U.S. found that positive workplace drug tests hit a two-decade high, fuelled largely by the legalization of marijuana across a variety of states. Cannabis, also known as marijuana (among countless other names), was banned in Canada from 1923 until medical cannabis became legal in 2001. In 2018 Canada became the second country in the world after Uruguay to legalize marijuana for recreational adult use, and the first G7 country to do so. Studies have shown that as more young people enter the labour market, their attitudes about using recreational marijuana are much more liberal and open than older generations.
This brings us to the issue of drug testing in the workplace. In Canada, for some time now, the courts have objected to random drug testing. Only in the period after a workplace accident where it is suspected that drugs or alcohol may have been involved, did Canadian employers get the green light to do limited employee testing as part of any investigation. By comparison in the U.S., some federal regulations actually require employers in the aviation and other in safety-sensitive industries to conduct random testing, specifying the minimum percentage of employees who must be covered each year. However, American laws on drug testing are complex and vary from state to state. The Supreme Court of Canada’s “Irving” decision in 2013, which set out guidelines for when random, unannounced tests can be justified, said that random testing had been “overwhelmingly” rejected by arbitrators as “an unjustified affront to the dignity and privacy” of employees in safety-sensitive jobs, except when there was reasonable cause.” On the other hand, some two decades ago, the U.S. Supreme Court first upheld the right to test for drugs in the workplace.
Testing for substance use is in itself a problem, especially when it comes to cannabis. Most important variable is frequency of use. Unlike alcohol use, for a first time cannabis user a trace of cannabis use could last for 3 days. For a daily user, it could last 30 days or more. In addition, the higher the Tetrahydrocannabinol (THC) level, which is the principal psychoactive constituent of cannabis, the longer it takes to metabolize in body. Edibles take longer than smoking. Weight and body fat also affect trace amounts due to THC binding to fat tissue. More importantly, often capacity for detection and time to get results can depend on kind of tests given, such as urine, blood, saliva and hair tests. Each testing method has a different ability to accurately determine the level of THC. Normally, traces of cannabis use will disappear in about 30 days. However, THC can be detectable for weeks, even months depending on one’s use, potency and frequency.
One of the privacy concerns with random testing is the matter of prescription medication and medical marijuana use which could disclose an underlying health issue that the employee may not want the employer to know about. It could also disclose someone who is in addiction treatment. Interestingly, there appears to a dearth of data from independent groups in the U.S. regarding impairment from prescription drugs in the workplace, partly because the issue has not drawn broad scrutiny. However, Quest Diagnostics, an American clinical laboratory that operates in the U.S. and Canada and a prominent provider of workplace drug tests, said that the rate of employees testing positive for prescription opiates rose by more than 40 percent from 2005 to 2009, and by 18 percent in 2009 alone. Increasingly, with an aging workforce, one can imagine that the use of prescription medication will increase, a concern for many industries in light of potential insurance liabilities.
As of now, Canadian case law severely restricts random drug testing of employees, even in safety-sensitive occupations. For example, an Ontario court most recently struck down the Ottawa airport’s plan to conduct unannounced, random drug tests on its firefighters, citing a lack of evidence the group has a substance-abuse problem that would justify such a “highly intrusive” invasion of privacy. The ability of an employer to require a random drug test appears to be much more difficult in Canada than in the U.S. Some would say that there are pros and cons under certain situations, but much depends on previous case law in both jurisdictions.
FROLITICKS 