Canadian Safety Reporter

5 Canadian HR Reporter, a Thomson Reuters business 2019 News | January 2019 | CSR A joint decision After the legalization of recreational cannabis, employers need to understand the legalities of testing, while new technologies promise better ways to measure impairment BY LINDA JOHNSON A WORKER at Tolko Industries in Williams Lake, B.C. was back- ing his log loader out of a loading bay in May 2016 when he struck and seriously damaged a chip loader. In post-incident drug testing, the worker tested posi- tive for cannabis. An assessment by a substance abuse professional concluded the individual did not have a substance abuse problem. The worker was fired. An arbitrator in the case stated the positive test was not enough to justify dismissal because can- nabis testing can reveal past us- age but not current impairment. However, the employer argued the worker was fired because his positive test for cannabis was in breach of the company's drug and alcohol policy and the com- pany was not required to prove the worker had been impaired. The arbitrator agreed the policy prohibited an employee from testing positive and, while reduc- ing the penalty, accepted that some discipline was appropriate. The legalization of recreation- al cannabis doesn't change the way employers handle drug and alcohol testing. However, the drug raises a particular difficulty: The lack of correlation between the amount of cannabis in a per- son's system and impairment. Employers should be aware of some of the main issues around their right to test, which recent legal cases have highlighted. They also need to understand the importance — as the arbitra- tion hearing above showed — of updating their drug and alcohol policies to deal with the poten- tially greater presence of canna- bis in the workplace. Testing methods The standard methods of test- ing for cannabis use are based on analysis of saliva (oral fluid), urine, and hair follicles. The most popular for use in the workplace tends to be saliva test- ing. Performed by taking a swab inside a person's mouth, saliva testing detects shorter periods of time between use and testing and thus detects more recent use, says Kelly VanBuskirk, part- ner at Lawson Creamer in Saint John, N.B., and an instructor in the faculty of law at the Univer- sity of New Brunswick. Blood testing is considered highly invasive and few employ- ers use it. Hair samples detect drug use in a longer window. These testing methods mea- sure the level of THC (tetrahy- drocannabinol), the main psy- cho-active chemical in cannabis, in a person's system. Testing can also measure the level of CBD (cannabidiol), a non-psychoac- tive compound in cannabis. Despite its ability to measure THC levels in the body, such testing does not reliably measure impairment, VanBuskirk says. Cannabis stays in the body for varying lengths of time depend- ing on several factors, including how much cannabis is used and how frequently it's used. So, the issue concerning what extent THC levels correlate with im- pairment is undetermined. "From an employer's perspec- tive, it's really a case of choosing an arbitrary presence of THC or CBD in the system. And, regard- less of what presence is chosen, that won't necessarily confirm impairment, and it definitely won't confirm impairment at a particular point in time," he says. "You can test for whether there's a presence of cannabis in a per- son's system, but what impact that cannabis has had on the per- son's mental state is still up in the air. That's the challenge." Despite its limitations, testing can still be useful, VanBuskirk believes. While it cannot indicate the exact level of impairment, it can provide evidence of possible impairment, particularly when it is considered in conjunction with observed signs of impairment. For example, a worker is in- volved in a safety-related in- cident and then is required to take a drug test. Beforehand, the person may have been seen dem- onstrating symptoms of impair- ment, such as slurred speech, fatigue, low attention level, poor co-ordination or glassy eyes. "If those symptoms are cou- pled with an incident and then a positive drug test, I think all those factors would point the needle towards impairment," VanBuskirk says. New technologies The Draeger DrugTest 5000 has been used in some European countries for several years and has just been approved for use in Canada. It allows police officers to conduct roadside saliva tests. So far, police officers have relied on the standard field sobriety test, during which they observe the driver's ability to stand on one foot or walk in a straight line. With this device, the officer gives the driver a prepared test cassette and asks him to provide a saliva sample. The cassette with the saliva swab is then inserted into an analyzer, which produces the THC reading within a few minutes. There are some concerns about the device, VanBuskirk says, including its reliability in very low temperatures. "There are different analyses of its accuracy. In some cases, it's been found to be quite accu- rate, and in other cases, there's been found to be upwards of 14-per-cent error rating. It's new technology in this country, and I think it's still to be determined how our climate and circum- stances will react to it." Cannabis breathalyzers are also being developed, including one at the University of British Columbia (UBC). The device, designed to be used like an alco- hol breathalyzer, identifies mole- cules of THC in a person's breath. There are also several apps coming to market that test for physical impairment, a kind of digital version of the field sobri- ety test. One is the Druid app, developed by a psychologist, Mi- chael Milburn, at the University of Massachusetts Boston. The user starts by doing sever- al tests while sober to set a stan- dard. In subsequent tests, meet- ing that standard will indicate the user is not impaired. Ian Mitchell, emergency phy- sician and associate professor in the department of emergency medicine at UBC in Vancouver, says the Druid app will also detect impairment from other factors. "It could be that you didn't sleep properly; you could be withdrawing from the sleeping medication you took last night. But you are impaired neverthe- less. And that is much more ac- curate and representative than blood tests." New technologies are also being developed for use in cars, Mitchell says. One enables the car to detect when a driver starts to weave or cross lanes. A coffee icon lights up to notify the driver of the danger. "Now, we're getting to the point where your car and maybe your phone is starting to analyze the things you do," Mitchell says. "And that's how you will be able to tell impairment." The right to test It is important for employers to understand the legalization of recreational cannabis did not change their right to drug test, says Randy Kaardal, partner at Hunter Litigation Chambers in Vancouver. Employers generally have the right to conduct pre-employ- ment drug testing. However, where the potential employee tests positive for a drug and is deemed to have an addiction or other medical problem, the employer must consider human rights legislation. An addiction is considered a disability and the company may be required to ac- commodate the employee. Testing is also accepted in post-incident situations, as part of an investigation, and where Balancing > pg. 7

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