OTTAWA – A key body tasked with helping the federal government decide whether and how to impose marijuana testing for workers finds itself at an impasse, ensuring no new federal rules on workplace impairment will be in place before pot becomes legal later this year.
The committee, comprising federally regulated employers, labour groups and federal officials, finds itself split over the issue of drug testing for jobs where impairment could pose a threat to public safety.
A number of committee members say that means the Liberal government likely won’t have time to address a number of requests from employers, who want rules put in place for “safety-sensitive” jobs, such as transit drivers, that would allow employers to legally conduct random drug tests.
There are currently no federal labour rules about drug and alcohol testing outside the military, but it is permissible in some circumstances when the union approves the policy and an employer can show evidence of a general substance abuse problem that poses a risk.
Successive governments from the late 1980s have stayed away from the issue, with current rules a result of rulings from labour arbitrators, human rights tribunals and the courts.
The decision to introduce legislation to legalize cannabis, which the government hopes to have in place this summer, has placed pressure on the government to establish national rules for workplace drug testing.
“It is the government of Canada that has chosen to legalize marijuana – we have no moral judgment one way or the other on that – but we do think that incumbent upon the government is to follow that bill with a parallel bill that gets to the issue of workplace safety,” said Derrick Hynes, executive director of a group representing federally regulated workers, known by the acronym FETCO.
Hassan Yussuff, head of the Canadian Labour Congress, said legalization wouldn’t change anything in regards to how workplaces deal with impaired employees: “The law is very clear that you can’t come to work in an impaired fashion to work and if your employer should find you (impaired), they, of course, can take whatever steps are necessary.”
How the Liberals are navigating the two sides in the debate is laid out in more than 150 pages of documents obtained by The Canadian Press under the access-to-information law that outline how the issue is complicated by existing human rights decisions, the requirement to accommodate workers whose addictions constitute a disability, workers’ privacy rights and actually proving impairment, particularly from cannabis.
The government is working through the multiple issues before making a final decision and has encouraged employers and labour groups to not walk away from the committee’s work, said Stephen Laskowski, president of the Canadian Trucking Alliance.
He and other committee members said the Liberals haven’t agreed to let employers randomly test workers, but the government has not rejected the idea.
Labour Minister Patty Hajdu talked about the issue with her provincial and territorial counterparts most recently in January when they all agreed to keep talks going on having harmonized regulations across the country.
A May 2017 presentation setting up the talks, prepared for the organization serving Hajdu and her colleagues, noted ministers needed to consider whether to mandate companies to create drug and alcohol policies, set thresholds to define when a worker is impaired from cannabis, or set “explicit authorities for alcohol and drug testing” either through legislation or regulations.
Brad Herald, vice president Western Canada operations for the Canadian Association of Petroleum Producers, said individual cases before tribunals or the courts will become the testing group for workplace-related cannabis policies, absent government leadership.
“It’s really inefficient,” he said. “It creates a lot of uncertainty for employers and employees.”
The Liberals are unlikely to make any final decision on drug testing until the Supreme Court of Canada rules on its legality in a case between Suncor and workers at its Alberta oil sands operation, said Troy Winters, senior health and safety officer with the Canadian Union of Public Employees.
“I don’t honestly think there is going to be a need for all this random testing. I just can’t see it,” he said. “This is not the apocalypse that everyone is predicting.”
A spokesman for Hajdu’s department said the government will continue to work with provinces and territories, employer and employee representatives and other experts on ways to address impairment at work to promote safety of employees, their coworkers and the public.