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Part of cannabis laws and regulations

The legalization of marijuana is complicating a thorny workplace issue: drug-testing on the job.

Railways, trucking firms and other industries in which safety is essential say they are being left to write − and defend − their own rules because new federal marijuana laws give them no new powers to test workers for impairment, putting the public, employees and their operations at risk.

Opinion: Marijuana and the workplace: Time to reboot our thinking

On Tuesday, Parliament lifted the 95-year-old prohibition on cannabis, freeing millions of adults to smoke, ingest or grow the drug without fear of a criminal record. And as cannabis becomes more accessible and socially acceptable, companies’ concerns are growing.

Industry groups representing Canadian National Railway Co., Canadian Pacific Railway Ltd., Air Canada, trucking companies and the Toronto Transit Commission, among others, urged the government to include mandatory random drug testing in companion legislation to the Cannabis Act (Bill C-45), which Prime Minister Justin Trudeau said this week will come into effect on Oct. 17.

But Bill C-46, which also received royal assent this week and deals with police powers to test for driver impairment, does not give employers any additional legal rights to screen employees for drugs or alcohol.

“There are serious concerns in our members about how we manage this,” Stephen Laskowski, president of the Canadian Trucking Alliance, said by phone. “Our equipment has become better-made, so if we are going to raise the bar in terms of safety … on the public highway, it has more to do with that human element. So mandatory drug and alcohol testing is a way to deal with that.”

He said some of the companies he represents conduct random, mandatory tests on drivers, but they are vulnerable to court challenges and arbitration. Drivers of trains or trucks and some other heavy machinery are subject to workplace screening for drugs and alcohol. But those tests generally happen after a collision, and are not random.

Canadian courts have at various times upheld and struck down employer drug-testing policies. Testing can be an invasion of privacy, and discriminate against people with the disability of addiction; yet, it is needed where there is a workplace problem with drugs and alcohol, courts have said.

It also is not clear how much cannabis a person has to consume to become impaired, what the effects are and how long it takes to wear off. This has not been spelled out in the legislation, making it hard for companies to gauge whether workers who use medical or recreational marijuana are fit to work.

So employers must create their own policies, and often, defend them against court challenges or in collective bargaining.

The union representing 125,000 workers in industries such as railways, trucking, ports and air travel says the current labour law and testing regime is sufficient, and opposes the calls for testing of transport workers to be enshrined in legislation.

“Marijuana is going to be legal, but that doesn’t change the fact that people know that you can’t show up for work if you’re under the influence of drugs or alcohol,” said Christopher Monette, a spokesman for Teamsters Canada. “That still remains illegal and unsafe and just plain wrong. The current labour law is robust enough to handle the issue of legalization. We’re opposing these calls for random testing. They already have the right to test when they have the reasonable grounds to do so.”

Canada’s railway industry employees are subject to drug and alcohol testing if they are suspected of using, involved in a derailment or other safety violation, or upon returning to work from rehab. Employees qualifying for “safety-sensitive” positions such as train operator must pass a drug screen. And engineers and conductors who operate in the United States are subject to random testing under U.S. laws.

But Simon-Pierre Paquette, a labour lawyer at CN, said post-incident tests are too late – the train wreck has already happened. Random testing is needed as a deterrent, he said at a conference in Toronto this week. “It’s not meant to punish, it’s meant to prevent,” Mr. Paquette said. He added that reasonable-cause testing is not perfect either, because it requires that an employee notify a manager that a colleague may be impaired. “That’s simply not reflective of reality,” he said.

Bill Blair, the federal government’s point person on legalization, suggested earlier this month that “more comprehensive discussions” are possible about testing in the workplace. But he also noted that courts have not allowed blanket testing in safety-sensitive jobs.

Mélany Gauvin, a spokeswoman for Transport Minister Marc Garneau, said the government is reviewing its policies on tools to combat substance use and abuse in the air, marine, rail and trucking industries.

The Toronto Transit Commission implemented random drug and alcohol testing last year to combat what an Ontario judge called a “demonstrated workplace drug-and-alcohol problem.”

In 2015, the TTC said three transit vehicles involved in collisions were operated by employees who tested positive for drugs – one case each involving opiates, cannabinoids related to medical marijuana use, and evidence of cocaine.

Megan MacRae, the TTC’s executive director of human resources, spoke about the organization’s fitness-for-duty program at a Toronto conference this week, and said about 80 per cent of employees who turned up positive for drugs or alcohol in random testing had “some kind of substance-use disorder.” Drug and alcohol testing was part of a larger strategy. “It’s just one tool in a comprehensive program or package that reflects to employees that, ‘We care about you.’ And I’m not talking about going around hugging people all the time, but we do have to make employees feel confident and safe that they can bring issues forward, get help that they need,” Ms. MacRae said.

The TTC’s union has fiercely resisted it, and Ms. MacRae said litigation on the subject is in its seventh year, with “no end in sight.”

In 2012, Suncor Energy Inc.’s random drug and alcohol testing for workers in safety-sensitive jobs was challenged by their union, Unifor, which won in arbitration. But when Suncor appealed, the Alberta Court of Queen’s Bench found the arbitration panel had erred and a new hearing should be held. The union went to the Alberta Court of Appeal, where it lost. Last week, the Supreme Court of Canada refused leave to appeal. So the case will go back to arbitration.

Unifor says there is no evidence random testing improves safety, and it is an undue violation of privacy. Niki Lundquist, a human rights and labour lawyer at Unifor, said the legalization of cannabis does not mean employers suddenly need new powers. “The idea that cannabis legalization will suddenly make workplaces unsafe is false,” Ms. Lundquist said. “We have rules surrounding impairment at work in all our workplaces.”

Suncor hopes to succeed in its case for random testing at the new arbitration panel. An injunction against such testing remains in place until the case is settled. “It’s the right thing to do to minimize safety risks,” said Sneh Seetal, a Suncor spokeswoman. Suncor says it has a long-standing problem with drugs and alcohol at its oil sands operations around Fort McMurray, Alta. From late 2003 through late 2017, in drug and alcohol tests conducted after a safety incident, Suncor reported 188 positive results, an average about one per month.

Ms. Seetal said Suncor’s general policy for cannabis will be to treat it “in a manner similar to alcohol.” For example, a bottle of wine is not allowed on any Suncor property. The same will apply to cannabis. For occasions such as parties when alcohol is permitted, Suncor is awaiting guidance from governments about cannabis, and would review its policies with a priority on safety.

Paul Boshyk, an employment and labour lawyer at McMillan LLP, said there is a “little bit of panic” among employers. “Everyone needs to take a deep breath.”

He said if employers have drug and alcohol policies and take steps to ensure a safe workplace, legal cannabis does not change much. He also noted medicinal cannabis has been legal for years.

Mr. Boshyk has followed the Suncor case closely. He said the Supreme Court’s decision last week not to hear it indicates the court feels its 2013 ruling, which laid out the basis for random testing, still holds. And he does not see Ottawa intervening with new rules, suggesting disputes should be left to experts such as labour arbitrators.

“I don’t see legislators stepping in to say, ‘employers, employees, this is how it should play itself out in the workplace,’ ” Mr. Boshyk said.