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04/03/2018 12:19 EDT | Updated 10/18/2018 12:03 EDT

Can Workplaces Drug Test Employees After Weed's Legal?

For now, we will have to work with what we have in terms of measures to keep impaired employees out of our workplaces.

As the government's self-imposed deadline for marijuana legalization approaches, politicians and legislators have been working around the clock to tie up any loose ends that could potentially cause problems once the product legally hits the streets.

So far, they have tackled complex issues around marijuana and driving, as well as setting age limitsand guidelines around the manufacture and purchase of the product.

But there is still a lot to do, and perhaps some of the biggest outstanding questions have to do with employment.

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How will employment standards adapt to the legalization of marijuana? Will employers be able to test and monitor for the drug among employees? How will they be able to ensure safety standards? How will your workplace be affected?

These questions, and more, have been raised by some interest groups and organizations that have expressed concerns about the future of workplace safety and marijuana. The federally regulated transportation sector, FETCO, has been particularly vocal in raising these concerns.

They are worried that with legalization, the drug will make its way into the workplace. They are asking how employers will be able to regulate its use among employees once it becomes legally available.

This is especially the case for "safe-sensitive" places of employment. When it comes to these types of jobs, there are increased concerns around this issue. We don't want people like long-haul truck drivers, transit drivers and commercial airline pilots, for example, doing their jobs while impaired by marijuana.

This may not be as desirable — or as easy — as it sounds.

And this is the driving force behind some who have been urging the federal government to do more in order to keep our workplaces — and our communities — safe.

To this end, some groups have suggested that the government should create a law for random drug testing at work.

But this may not be as desirable — or as easy — as it sounds.

Firstly, there is a question about venue. Under which statute or act would we be able to impose a provision like this?

The answer is not simple.

We cannot turn to our criminal laws in order to do this.

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It goes without saying that all people must be treated equally and fairly under criminal law. Creating a different set of criminal standards for a group of people based on their employment status is likely to be seen as fundamentally unfair. If such a provision were to be enacted under the Criminal Code, it would be unlikely to withstand charter scrutiny.

Employment law also has its challenges.

While we do have federal employment standards right now, which dictate that a person cannot come to work in an impaired state, there are no federal labour laws around random drug testing in the workplace in Canada, with the exception of the military.

As the law currently stands, random workplace drug testing is contentious.

Previous attempts at federally legislating random drug tests in the workplace have all but fallen flat.

The simple presence of THC in an employees' system may not necessarily prove anything.

After all, employees are entitled to a certain degree of privacy, even in the context of their workplace. An intrusion into this, like random and arbitrary drug testing, will not be easily legislated.

It also comes down to the basic issue plaguing most lawmakers when it comes to issues around marijuana impairment, which is simply proving impairment. The simple presence of THC in an employees' system may not necessarily prove anything with respect to impairment or their ability to do their job.

However, this does not mean that drug testing at work is impossible. Under our current laws, some employers can order drug tests in particular situations — but it must be done on a case-by-case basis, and only where there are grounds to do so.

More often than not, this means that an employer must have reasonable cause to believe that the employee is under the influence of drugs or alcohol while at work, but drug tests may also be ordered when an employee was involved in a workplace accident or "near-miss" incident.

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So in other words, there has to be some reasonable basis for invading the employees' privacy in this manner.

Broadly speaking, this system seems to strike an appropriate balance between the privacy rights of the employee and the interests of workplace safety by ensuring that such tests are not ordered in an arbitrary, discriminatory, or improper manner.

But will this be enough once marijuana is legal?

It is highly unlikely that the legalization of marijuana will bring with it a sudden flooding of drug-impaired people into our workplaces; but being impaired on any job site is unacceptable.

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But for now, we will have to work with what we have in terms of measures to keep impaired employees out of our workplaces. The governmental committee that was established to tackle this issue recently reached an impasse and was unable to make any recommendations for moving forward at a federal level.

So while the question of drug testing at work is an important one for both employers and employees, it looks like we won't have any certain answers before citizens can legally light up.

My best advice? If you are going to get high in July, find something more fun to do than go to work.

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