Weed is legal in Canada, but many employees and employers want to know what that means in regards to marijuana use inside and outside the workplace. The real question comes down to how employers and employees will work out marijuana use outside of the workplace. So far, the CBC reports that the federal government has not updated the Canada Labour Code following the marijuana legalization, rather deciding to leave it up to the individual workplaces to determine their own drug test policies.
Labour Minister Patty Hajdu told the newspaper that the government is "evaluating whether additional regulations are required under the Canada Labour Code, including drug testing for certain safety-sensitive occupations.”
Since legalization appeared on the horizon, many Canadian companies and public institutions have been scrambling to update their drug policies before the federal regulators — particularly in occupations where there is a safety risk involved. For example, Air Canada recently ruffled feathers by prohibiting marijuana use both for on- and off-duty pilots. Many police departments have reportedly banned the off-duty use of marijuana as well.
However, unlike alcohol, there aren't straightforward drug testing methods to see if a person is currently impaired on marijuana. This means that many marijuana drug tests may rely on long-term tests that do not accurately determine impairment— but still violate privacy concerns.
Can You Drug Test in Canada?
In 2013, Canada’s Supreme Court ruled in a case against Irving Pulp and Paper Ltd. that determined the limits of random alcohol and drug testing. The 6-3 ruling found that drug testing is an invasion of privacy, and there are only a few instances where a drug test may be permitted in the workplace.
Ontario Human Rights Commission (OHRC), which is the government agency that protects human rights, explained that Canadian law generally only permits drug testing in safety-sensitive workplaces but does not permit it for most professions.
“Because of the potential to intrude on people’s privacy, drug and alcohol testing can only be justified in very narrow circumstances – where there are health and safety concerns in dangerous work environments in which people are doing safety-sensitive work,” said OHRC on their website.
The OHRC dismissed a common assumption in the United States that drug tests can be carried out to promote efficiency and productivity among employees, even going so far as to argue drug testing has no direct relationship to job performance.
“Drug and alcohol testing that has no demonstrated relationship to job safety and performance, or where there has been no evidence of enhanced safety risks in the workplace, has been found to violate employees’ rights.”
In many cases, industries would like to ban pot use when an employee is on the job — particularly in industries such as transportation and construction where safety concerns can present an issue.
But marijuana is not a just a recreational drug. When it comes to medicinal use, an adjustment will need to be put in place to allow the use of cannabis as a medicine while the employee is on the job. Their cases, however, will be determined on an individual basis, and if there are safety concerns involved, employees who use medical cannabis should not be impaired while on the job.
Oil sands, mining and diving workers are subject to testing
Alberta energy giant Suncor Energy, who was sued by multiple counties in Colorado for their contribution to climate change, introduced random alcohol testings for jobs with safety concerns in its oil sands operations back. The union representing the oil sands workers filed a complaint arguing that the test violated their privacy.
Eventually, the Alberta Court of Queen's Bench sided with the energy giant to rule against the energy company. The Supreme Court has signaled that they will not hear the union’s appeal.
Under Canada’s Occupational Health and Safety Act (OHSA), there are three industries that expressly prohibit impairment or the presence of alcohol or drugs in workplaces. The three industries are offshore oil and gas, mining, and diving.
Drug Testing in the United States
When it comes to human rights, it’s increasingly clear that the United States is more than a few kilometers behind our friendly neighbors to the north. Case in point: drug testing is commonplace in the United States, and not only in roles where safety concerns are prevalent.
A 2014 scientific survey of U.S. employees showed that 48.2% indicated that drug testing occurred at their workplace. Most of the larger corporations — basically all of the Fortune 500 companies — do some form of drug testing.
However, an employer’s right to regulate employee behavior during the workday does not automatically give them the right to tell you what to do once you sit down on your couch after a long day at work.
According to the Atlantic, the former President Ronald Reagan was responsible for the starting the U.S. business infatuation with drug testing. In 1988, Reagan signed an executive order mandating drug tests for all federal personnel and certain contract workers. Companies around the country, while not obligated by law, took a hint from great actor-in-chief and began to conduct their own.
Author of the book, "Alcohol and Illicit Drug Use in the Workforce and Workplace", Michael Frone explained to the Atlantic that drug testing sparked a hot new industry “comprising drug-test manufacturers, consulting and law firms specializing in the development of drug-testing policies and procedures, and laboratories that carry out the testing.”
Frone argued that there are three top reasons why the prevalence of drug testing has stayed so persistently. The first reason is that companies are mistaken about the efficiency they stand to gain. Insurance companies may also deliver discount rates to employers based on the same faulty assumptions. Finally, many companies believe that they can somehow project a more clean-cut presentation — the Brady Bunch image if you will.