Impairment at the time of incident

[vickyp]

#102586

Forum: Community

In reference to the recent case Gilbert and D & D Energy Services Ltd., Re, 2017 CarswellNat 2499 (Can. Lab. Code Adj.)]., the story stated that the worker took an A&D test that showed marijuana use but did not show impairment at the time of the event. It, however, highlighted that she substituted her urine which was the nail in the coffin. What if she hadn’t done that. I think a growing concern for companies with the impending legalization of marijuana is “what is the appropriate testing method to show impairment at the time of the incident'” 

[vickyp]

#102950

Great question! The answer is that if she hadn’t cheated, she probably wouldn’t and couldn’t have been fired. The rule: USING cannabis isn’t grounds for discipline; using it or being impaired AT WORK is. And to the extent that a positive test doesn’t detect CURRENT cannabis impairment, it may be inadequate to justify discipline. The employer in this case was able to get around this because the employee gave her an alternative grounds for discipline–cheating on the test.
And, YES, this is a huge concern for employers. The key is to have a legally sound testing policy. Although RANDOM drug testing is extremely difficult to justify–especially in Alberta given the recent Suncor ruling–for-cause/post-incident testing is much more defensible, especially for safety-sensitive employees. Here’s a “sneak preview” of a drug testing policy article that we plan to run in OHSI in the next month or two. (The draft
THE 12 THINGS TO INCLUDE IN YOUR TESTING POLICY

1. Policy Statement

Like many employers do, you may want to set the tone by stating that your organization has a zero tolerance drug and alcohol use policy. But while stating larger principles is recommended, you need to be careful about phrasing your policy as a workplace safety rather than a moral or even legal imperative (especially after cannabis is legalized) [Policy, Sec. 1].

1. Statement of Purpose

Acknowledge that testing is intrusive but state that it’s essential to enforcing your zero tolerance policy and its workplace safety objective [Policy, Sec. 2].

1. Policy Scope

The policy must be balanced in scope. On the one hand, testing should generally be limited to safety-sensitive workers; on the other hand, the policy should apply broadly to any and all individuals that perform safety-sensitive jobs regardless of their employment status, including employees of contractors and people applying for safety-sensitive jobs at your organization [Policy, Sec. 3].

1. Employees’ Duties

If the testing policy is freestanding, you may want to restate or refer to workers’ duties under the organization’s drug and alcohol use policy, including coming to work sober and fit for duty and remaining in that state at all times while on duty [Policy, Sec. 5].

1. Bases for Testing

The meat of the policy are the rules for different bases of drug and alcohol testing, including:

• Pre-employment testing: Mandatory for applicants who receive offers for safety-sensitive jobs [Policy, Sec. 6.1];
• For-cause testing: Allowed when there’s grounds for reasonable suspicion of impairment with such grounds specifically listed [Policy, Sec. 6.2];
• Post-incident testing: A form of for-cause testing allowed after safety incidents and near misses [Policy, Sec. 6.3];
• Random testing: Permitted only in narrow safety-driven circumstances [Policy, Sec. 6.4];
• Post-Rehabilitation Testing: May be required for workers that test positive who are offered the opportunity for rehab in lieu of termination [Policy, Sec. 6.5]; and
• Scheduled Periodic Testing: May be required as part of a fitness for duty medical exam [Policy, Sec. 6.6].

1. Testing Procedures

There are 6 crucial procedural issues you need to address in your testing policy:

• How job applicants and workers give their consent to be tested [Policy, Sec. 7.1];
• How samples are collected and who can collect them [Policy, Sec. 7.2];
• The controls in place to ensure the integrity of the sample from collection to transporting to the lab and actual testing [Policy, Sec. 7.3];
• The methods used to confirm initial positive test results [Policy, Sec. 7.4];
• The criteria for a positive result—which should generally track the applicable regulatory limit for the substance tested for, e.g., BAC for alcohol [Policy, Sec. 7.5]; and
• Procedures for retesting and appeals after positive results [Policy, Sec. 7.6].

1. Privacy of Test Results

Acknowledge that test results are privacy-protected information that you will keep secure and refrain from using except as allowed or required by law. Also indicate that test records are organization property but that you’ll make them available for inspection and copying as required by law [Policy, Sec. 8].

1. Violations

Explain that violations include not just testing positive but tampering or attempting to tamper with samples and/or refusing to submit to testing in the first place [Policy, Sec. 9].

1. Consequences of Violations

Make it clear that workers who commit violations will be subject to discipline up to and including termination in accordance with your organization’s disciplinary policies and procedures and that job applicants who commit violations will have their job offered revoked (or terminated if the violation is discovered after the applicant has started working) [Policy Sec. 10].

1. Rehab Rather than Termination

Reserve your right to offer workers who test positive the opportunity to enter a last chance agreement in lieu of immediate discipline or termination. Typically, the worker is put on administrative leave and allowed to return to work provided they successfully complete a rehab program, which usually involves regular testing [Policy, Sec. 11].

1. Acknowledgment of Employee Accommodation Rights

To insulate against liability risks for discrimination, acknowledge that drug and alcohol addiction are disabilities under human rights laws and that you’ll provide reasonable accommodations to workers with addictions up to the point of undue hardship [Policy, Sec. 12].

1. Attach Consent Form

Last but not least, attach a copy of the form you require job applicants and workers to sign to consent to testing as an Exhibit to your policy [Policy, Exhibit A].

[vickyp]

#102951

Unfortunately, there is currently no test capable of precisely detecting current impairment for marijuana. The diagnostic community is working furiously to come up with something–after all, whoever invents the perfect test is going to get real rich–but nothing is imminent. At least that’s what I was told by a HealthCanada scientific expert during a recent webinar. In the meantime, there are 2 basic testing methods:
POCT (Point of Care Testing) which is done on the spot using urine or an oral sample. But while it gives an immediate result, POCT is also notoriously unreliable, particularly the oral tests which often yield a high rate of false negatives.
LAB testing done on blood or urine on a remote lab sight is more reliable but entails all kinds of “chain of custody” problems, e.g., tampering with the sample, poor storage, etc. And even though more accurate than POCT, lab testing suffers from the same basic defect in terms of limited value in detecting CURRENT impairment.
(Blood testing is also generally more reliable than urine testing but much more intrusive.)
So let’s hope they come up with a reliable, relatively non-intrusive test for current marijuana impairment real soon. . .
Glenn

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