Canadian Occupational Safety

16 Canadian Occupational Safety | www.cos-mag.com TESTING METHODS The standard methods of testing for cannabis use are based on analysis of saliva (oral fluid), urine and hair follicles. The most popular for use in the workplace tends to be saliva testing. Performed by taking a swab inside a person's mouth, saliva test- ing detects shorter periods of time between use and testing and thus detects more recent use, says Kelly VanBuskirk, partner at Lawson Creamer in Saint John, N.B., and an instructor in the faculty of law at the University of New Brunswick. Blood testing is considered highly invasive and few employers use it. "Hair samples detect drug use in a longer window. The difficulty is that somebody could have used cannabis, say, two days previously, and that may not be helpful for the employer's cause to demonstrate recent use. Saliva and urine test- ing are two popular methods, and employers use them more frequently than hair follicle testing for sure," he says. These testing methods measure the level of THC (tetrahydrocannabinol), the main psycho- active chemical in cannabis, in a person's system. Some employers set the acceptable level of THC at 5 nanograms per millilitre (ng/mL); others set it at 10 ng/mL. Testing can also measure the level of CBD (cannabidiol), another, non-psychoactive compound in cannabis. Generally, it will take at least 24 hours for an employer to get test results back from the labora- tory conducting the sample analysis. The time will vary, of course, depending on the type of test used and on the distance of the lab from the employer's workplace. Despite its ability to measure THC levels in the body, such testing does not reliably measure impairment, VanBuskirk says. Cannabis stays in the body for varying lengths of time depending on several factors, including how much cannabis is used and how frequently it's used. So, the issue concerning what extent THC levels correlate with impairment is undetermined. "From an employer's perspective, it's really a case of choosing an arbitrary presence of THC or CBD in the system. And, regardless of what presence is chosen, that won't necessarily confirm impair- ment, and it definitely won't confirm impairment at a particular point in time," he says. "You can test for whether there's a presence of cannabis in a person's system, but what impact that cannabis has had on the person's mental state is still up in the air. That's the challenge." Despite its limitations, testing can still be useful, VanBuskirk believes. While it cannot indicate the exact level of impairment, it can provide evidence of pos- sible impairment, particularly when it is considered in conjunction with observed signs of impairment. For example, a worker is involved in a safety- related incident and then is required to take a drug test. Beforehand, the person may have been seen demonstrating symptoms of impairment, such as slurred speech, fatigue, low attention level, poor co-ordination or glassy eyes. "If those symptoms are coupled with an incident and then a positive drug test, I think all those factors would point the needle towards impairment," VanBuskirk says. NEW TECHNOLOGIES The Draeger DrugTest 5000 has been used in some European countries for several years and has just been approved for use in Canada. It allows police officers to conduct roadside saliva tests. So far, police officers have relied on the standard field sobriety test, during which they observe the driver's ability to stand on one foot or walk in a straight line. With this device, the officer gives the driver a prepared test cassette and asks him or her to pro- vide a saliva sample. The cassette with the saliva swab is then inserted into an analyzer, which pro- duces the THC reading within a few minutes. There are some concerns about the device, VanBuskirk says, including its reliability in very low temperatures. "There are different analyses of its accuracy. In some cases, it's been found to be quite accu- rate, and in other cases, there's been found to be upwards of 14 per cent error rating. It's new technology in this country, and I think it's still to be determined how our climate and circumstances will react to it." Cannabis breathalyzers are also being developed, including one at the University of British Columbia (UBC). The device, designed to be used like an alcohol breath- alyzer, identifies molecules of THC on the user's breath. There are also several apps coming to market that test for physical impairment, a kind of digital version of the field sobriety test. One example is the Druid app, devel- oped by a psychologist, Michael Milburn, at the University of Massachusetts Boston. The user starts by doing several tests while sober to set a standard. In subsequent tests, meeting that standard will indicate the user is not impaired. "You follow a dot with your finger on a screen. It can assess what level of impair- ment you are, which is a different thing than your blood level," says Ian Mitchell, emer- gency physician and associate professor in the department of emergency medicine at UBC in Vancouver. He adds that the app will also detect impairment from other factors. "It could be that you didn't sleep prop- erly; you could be withdrawing from the sleeping medication you took last night. But you are impaired nevertheless. And that is much more accurate and representative than blood tests." Interesting, new technologies are also being developed for use in cars, Mitchell says. One enables the car to detect when a driver starts to weave or cross lanes. A coffee icon lights up to notify the driver of the danger. "Now, we're getting to the point where your car and maybe your phone is starting to analyze the things you do," Mitchell says. "And that's how you will be able to tell impairment." THE RIGHT TO TEST It is important for employers to understand the legalization of recreational cannabis did not change their right to drug test, says Randy Kaardal, partner at Hunter Litigation Chambers in Vancouver. Employers generally have the right to conduct pre-employment drug testing. However, where the potential employee tests positive for a drug and is deemed to have an addiction or other medi- cal problem, the employer must consider human rights legislation. An addiction is considered a disability and the company may be required to accommodate the employee. Testing is also accepted in post-incident situa- tions, as part of an investigation, and where there is a reasonable suspicion of drug use, Kaardal says. The right of the company to test and the rules gov- erning the testing should be stated clearly in the company's drug and alcohol policy. "Where there's been a serious incident or near miss and we, the employer, have reason to believe because of the way this person was behaving that impairment was involved, we will be allowed to test you. That's called 'cause' testing," he explains. The right to conduct random drug testing, how- ever, is far more controversial. Random testing is considered to be a gross and severe invasion of an employee's privacy rights and violation of human rights legislation, Kaardal says. One of the most important cases to deal with random testing was that of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper. When the Saint John, N.B.-based company introduced random alcohol testing for workers in safety-sensitive jobs at a paper mill, the union grieved the policy. The case marked the first time the Supreme Court of Canada had dealt with the question of random drug and alcohol testing in a unionized workplace. Its ruling, in 2013, set the standard for random testing in Canada. The Supreme Court of Canada, agreeing with the arbitration panel, decided the employer had an obligation not only to show the job was safety sensitive but, more importantly, to show a general problem of drug or alcohol abuse existed in the workplace. "The decision set a very high bar. What they said is: Does the employer have a real, pressing require- ment for drug testing?" Kaardal says. "It's not enough to say this job is dangerous. To justify random testing, you need to show evidence there's been a huge increase in unsafe operation. You need to show real evidence that says, it's because there's a drug culture in this workplace or on that job." The Irving case has provided a reference for sub- sequent legal cases about random drug testing in the workplace. These more recent cases show how difficult the debate remains. Results often rest on a balancing of the privacy rights of employees versus the safety of the workplace. "An employer has a general duty under most THE NEXT HUMAN CAPITAL MANAGEMENT TREND: DE-SILOING HRM AND OHS TO ACHIEVE INTEGRATED WORKER HEALTH BY BILL HOWATT AND GLYN JONES WHITEPAPER Sign up for Canadian Occupational Safety Newswire, our free weekly email service, and receive your FREE copy. THE NEXT HUMAN CAPITAL MANAGEMENT TREND Visit cos-mag.com/enewsletter-subscribe to sign up today. FREE

• Cover