written by: Derrick Penner
Canada’s trucking industry is challenging the federal government over standards for marijuana impairment, arguing that companies should be able to set zero-tolerance policies because of the safety consequences involved for professional drivers.
“(Professional drivers) are sharing their workplace with the public, so the standards they’re required to meet should be higher than the average person operating a passenger vehicle because the consequences of them being impaired (are higher),” said Louise Yako, CEO of the B.C. Trucking Association.
That demand, however, could prove challenging under existing employment law and human rights legislation, according to a legal expert.
The federal government proposed standards for what should constitute impaired driving under the influence of marijuana in its legislation to legalize the drug by next July.
For THC content, the psychoactive component in marijuana, the legislation proposes THC of more than two nanograms, but less than five nanograms per millilitre of blood, be classified as a summary offence.
THC content of more than five nanograms per millilitres of blood would be classified as hybrid offence, which would give prosecutors latitude to treat an incident as a more serious crime.
The legislation proposes the use of saliva tests to determine whether a police officer has the probable cause to put a driver through more definitive testing.
However, Yako said the trucking industry is looking for stricter standards since marijuana doesn’t show obvious signs of impairment, like alcohol does, to give employers probable cause to test for impairment and because there is no definitive roadside test for marijuana impairment.
Yako said the industry’s lobbying is being lead by the Canadian Trucking Association, but the provincial trucking associations “share a common concern.”
“For professional drivers, we’re recommending that it be zero,” Yako said, pointing to the federal government’s own task force report on proposed legalization, which indicated that current medical science hasn’t identified a safe level of impairment.
And trucking firms are looking for more latitude to conduct random testing of drivers, Yako said, beyond the existing conditions they can test under, which include pre-employment screening.
Yako added that zero tolerance also aligns with the law for professional drivers in the U.S., which Canadian drivers who cross the border already have to abide by, including provisions for random drug testing.
B.C. doctors have raised concerns about the prospect of marijuana-impaired driving, pointing to Washington State’s experience with a doubling in the number of fatal crashes where drivers tested positive for marijuana in the year following legalization there.
However, employers will have to be cautious about setting standards related to marijuana use because of existing law, said employment lawyer Cindy Zheng.
“The key thing is that employers must have a reasonable basis to back up (their) position,” said Zheng. “You can’t just say, ‘People who get high are inherently dangerous, so you’re going to have mandatory testing,’” she said. An employer would have to have expert analysis or evidence to demonstrate that the testing they’re proposing decreases safety risks.
Zheng hasn’t seen an increase in the number of employers coming to her with concerns about their policies around marijuana use by employees, but guesses that requests will increase the closer Canada gets to implementing legal marijuana.
Zheng recommends that employers establish a clear policy around impairment at work, by substances that are legal or illegal, including alcohol, prescription or non-prescription drugs, and marijuana, whether it is medicinal or non-medicinal.
And that should be followed up with solid education of both employers and employees about their rights and obligations, Zheng said, which include an employer’s obligation to accommodate employees with addiction issues since addiction is considered a disability under B.C.’s human rights code.
In that context, Zheng said employers are sometimes surprised to learn that zero-tolerance policies when it comes to marijuana could also be considered a violation of the human rights code.
However, marijuana-legalization activist Dana Larsen contends that fears over marijuana-impaired driving are overblown. He argued that studies haven’t shown any correlation between levels of THC in blood and level of impairment, unlike alcohol.