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The Question

I am a school bus driver who fulfilled my Duty to Disclose. Within 24 hours I was suspended pending drug testing. My concerns are that a proper analysis will not be performed. I have been driving with this company for over a year with no incidents, no customer complaints. In fact, I have received many verbal compliments and one written on my safe driving.

I am trying to be pro-active without being overly aggressive in the event we are able to amicably work this out. I had two hours notice for my testing appointment but had not worked in four days. While off work, I have had no reason to monitor my THC intake.

The First Answer

Steven M. Boorne, Lawyer, HHBG Employment Lawyers, Vancouver

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Not knowing the specifics of this employee’s company’s policy, I will address three common, interrelated issues that arise from the scenario. When can an employer compel an employee to disclose recreational marijuana use? Can an employee who voluntarily discloses drug use be required to submit to a drug test? And finally, how reliable are drug tests at detecting impairment?

Employers cannot compel an employee who is using marijuana recreationally to disclose the fact they use cannabis, even if that employee works in a safety-sensitive position. However, if employees are impaired for any reason, they have a legal duty, under provincial health and safety legislation, not to work due to substance use, medication side-effects or even fatigue.

Similarly, employees who pro-actively disclose marijuana use to their employer cannot be forced to undergo a drug test. Courts view drug testing as a serious invasion of physical and personal privacy. Even in safety-sensitive jobs, drug testing is permitted only in narrow circumstances. In a case where there is clear, documented evidence, based on direct observation, that an employee is suspected to be impaired, “reasonable suspicion” testing may be ordered. Testing is also allowed after a workplace accident or near-miss situation to rule out employee impairment.

Depending on the kind of testing involved, the employee may have good reason to be concerned about result accuracy. For example, saliva tests can produce significant error rates. And blood work confirms only the presence of cannabis by-products in the bloodstream. The test does not determine when the cannabis was consumed. Drug tests cannot confirm impairment.

Employers enjoy a wide latitude in setting rules for employees in regard to marijuana consumption. Even more so in safety-sensitive industries. The best line of defence is for employees to familiarize themselves with company policy.

The Second Answer

Shane King, Lawyer, McLeod Law, Calgary

When you say “Duty to Disclose,” I presume you mean your employer has a drug and alcohol policy requiring employees to disclose drug dependencies, which you did.

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The reason for requiring the disclosure of dependency issues is to allow the employer to offer appropriate accommodation to the employee, such as time off work to go to rehab or to address a mental disability (addiction) before a safety risk materializes. Failing to disclose a dependency issue can be a breach of policy that may justify termination of employment; however, the purpose of disclosure is not to identify which employees to dismiss. If your employer decided to dismiss you because you disclosed a substance dependency, that would likely be considered discrimination in employment based on mental disability.

Your employer requiring drug testing when you weren’t at work is unusual. What an employee does on his/her own time that doesn’t affect his/her ability to work is generally none of the employer’s business, provided it is legal and does not bring the reputation of the employer into disrepute. Unless a drug test is administered in circumstances where an employee could be impaired at work I question whether the employer would be able to demand the test, or that the test results could be used to impose discipline.

You may want to speak to a lawyer about what your rights and obligations are under your employer’s drug and alcohol policy. If your employer does impose discipline after the test results come back, you should definitely contact a lawyer as you may have a valid human rights complaint.

Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com

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