With the legalization of Cannabis in Canada, fleet companies need to be more aware of how to manage the drugs’ use in the workplace.
As times are changing so must our ideologies. Back in 1980 to 2016, there was an understanding that companies were allowed to fire their employees if they were caught taking drugs, including cannabis, as it was considered illegal. This promotion of a drug-free workplace using drug and alcohol policies was common; however, with the legalization of recreational marijuana and its use for medicinal purposes, workplaces have to switch to an “impairment” model, where policies determine whether the employees are fit for duty while taking that drug.
Chelsey Tannahill, President of Chandler Consulting, provides services for companies in four main areas: health testing, substance abuse professional services, policy developments, and workplace training.
“Since legalization three months ago, what I’ve noticed is that companies are still having a hard time adapting to Cannabis in the workplace. And I think this is because of two main things: the first part is that there is still a lack of substance awareness for the drug itself. There’s so much misinformation out in the world, so it’s no wonder that employers are having a hard time understanding it. I truly believe that to effectively identify it in the workplace, and to address it you have to understand it first. The second part is the actual addressing part. There hasn’t been any support or guidance for employers in terms of actually addressing it since legalization,” Tannahill says.
A quick history lesson
So, to start at the very beginning, it’s important to understand that cannabis has been around for far longer than most people believe. In fact, it’s been used and cultivated by mankind for at least 6000 years for fibers (hemp), recreational use, and medicinal purposes. It is a complex plant with over 400 different chemical compounds, with 100 plus “cannabinoid compounds,” and when mixed with the chemical properties already in our bodies, they have varying effects. Some of those compounds are psychoactive–due to different levels of Delta9-tetrahydrocannabinol (THC)–which means they have an impairing effect. Other cannabinoid compounds are not psychoactive and used as medicinal properties. It’s important also to understand that different products have different levels of THC, which means they give people different levels of impairment.
Today, cannabis is the most widely used drug in Canada, after alcohol, and often makes up the majority of positives in workplace testing. Chandler Consulting has received 50% of positive tests from Cannabis in 2018, with 60% of positive tests for the DriverCheck test. This test primarily concerns fleet companies, as cannabis impairs the cognitive and motor abilities necessary to operate a motor vehicle and leads to the risk of crash involvement to being nearly doubled. Unfortunately, this drug is the most commonly detected psychoactive substance found in dead and injured drivers in Canada.
Thankfully, there is a new law that recognizes the potential abuse of this drug after the acceptance of “The Cannabis Act” in October 2018. This “Impaired Driving” law states that THC levels set at:
- 2-5 ng becomes a summary offence with a $1,000 fine;
- 5+ ng becomes an indictable offence with a $1,000 fine and 120 days in jail;
- 5 ng THC along with alcohol is considered a hybrid offence with $1,000 fine and 120 days in jail too.
This law, of course, applies to the use of medical Cannabis too.
Now understand that there are still legal and illegal products. Dried and fresh cannabis, oils and edibles are legal but there is still black-market cannabis, and cannabis concentrates (“Dabs”) that have concentrated THC and cause severe impairment.
There are also two ways to consume marijuana: inhaling (as in smoking it) which means the absorption rate is fast and erratic resulting in maximal plasma concentrations usually within 60-120 minutes. The second way to consume is with oral administration or edibles – which means eating brownies or candy created with cannabis– with maximal plasma concentrations usually after two to four hours. This extended time means people feel the effects of marijuana a little later but for that much longer as well.
Some of the signs of Cannabis Impairment include:
- Glassy, red eyes;
- Dilated pupils and impaired tracking ability;
- The smell of sweet alfalfa (fresh cannabis) or burnt rope/skunk (dried cannabis);
- The inability to divide attention and delayed reaction times;
- Distorted sense perception (i.e., Time distortion);
- Sudden shifts in mood from tense to relaxed;
- Anxiety, panic, and hallucinations;
- Impaired motor functioning (poor muscle coordination);
- Inappropriate laughter followed by sleepiness;
- Loss of interest and motivation;
- Excessive snacking or eating at inappropriate times.
“The importance of face-to-face interactions with workers is so you can observe them–testing is reactive, we’re reacting to the impairment. Be proactive, where we are looking for the signs of impairment before it is a problem. Some of the best times to have that face-to-face interaction is when people return form smoke breaks. Don’t outright ask them if they smoked cannabis. Rather the interaction you’re having is basic relationship building, so ask them regular questions like ‘How’s your wife? How are your kids? Where are you headed? How’s this going?’ And as you have that conversation, look for signs of impairment,” says Tannahill.
There are three things to consider changing in the workplace.
Update the company policy
First, a formalized and thoroughly comprehensive fit-for-duty or drug and alcohol policy. Ensure that the policy is now impairment-focused policy, which can include impairment from other sources as well, like fatigue, mental health issues, and medication use. If “use” focused policies still exist, such as clauses of off-duty use of cannabis, in the company’s contracts, they need to be reconsidered.
Policies also need to talk about cannabis specifically. About 90% of policies still say alcohol and illicit drugs; however, cannabis is no longer considered an illicit drug. Identify and address it specific, saying:
“…work environment free of impairment from the use, misuse and/or abuse of Alcohol, Illicit Substances, Cannabis, Prescription Medication(s), over-the-counter Medication(s), and/or other Medication authorized for purchase from a Health Canada approved source (e.g., Medicinal Cannabis).”
Include a glossary defining Cannabis and Cannabis edibles, when is it considered legally obtained and mention what the legal products are. It’s always best to cover all bases.
Also include a Fitness for Duty Requirements and Prohibited Conduct for Cannabis clause, which states the employees must report Fit for Duty and remain Fit for Duty while at work. Employees will be deemed unfit if they have:
- An oral fluid concentration of 4 ng/ml or greater;
- Used cannabis while on duty;
- Consumed cannabis within 24 hours of reporting for duty; and
- Possess a cannabis packaged or container while on duty.
Prohibited conduct should incorporate the use, possession, cultivation, manufacture, storage, distribution, offering, or sale of cannabis and cannabis edibles.
Address medicinal cannabis. As of June 2018, there were over 333,000 Canadians authorized to use medicinal cannabis, with this number expected to increase exponentially over the next decade or so to about 400,000 people by 2025.
To be categorized as a medicinal cannabis user, a person must have a valid authorization and must purchase from an approved Health Canada source. The site provides a list of places where people can purchase medicinal cannabis. If the site is not listed there, then that person automatically is considered a recreational user.
Also, there are only a few medicinal conditions for which there is consistent evidence that cannabinoid therapy is effective. These conditions include neuropathic pain, palliative cancer pain, chemotherapy-induced nausea and vomiting and spasticity due to muscular sclerosis or spinal cord injury.
To have the medical clearance, an employee must be sent to the prescribing physician with a medical clearance form and a copy of their PDA or job description. The physician will complete the medical clearance form, which will request information on any workplace limitations or restrictions. After it is completed, the form should be returned to the company by the physician.
Mention that the company reserves the right to test for all substances and then provide employees with a list, with a list of processes for investigations, medical clearance, positive test management, and refusals. And outline costs associated with the policy, making it clear that employee costs will include Substance Abuse Assessment, required counselling and education sessions, Return to Duty and Follow Up Testing.
Testing is proof
Second is testing. While a lot of companies feel uncomfortable with the use of testing, it’s important because it is considered proof. If a company sends someone home without pay because they look impaired without the evidence that they are, then those people could easily call the labour union who will demand proof of impairment. Alternatively, if a company sends them home with pay, then every employee will be coming to with impairment issues hoping to get a paid leave.
There are four different types of testing forms involve testing hair, blood, urine, and saliva. The purpose of hair testing is to look at long-term use. In a workplace setting, this is a moot point because companies are looking for signs of impairment, not what drugs the employee did six months ago or so. Blood testing is super invasive, and it’s not approved to be used in the workplace. That’s what they use in a criminal situation, and companies can’t get away with it. Urine testing and saliva are the most common use of testing acceptable within the workplace.
Companies can do a POCT urine test that provides results within five minutes, is 98% accurate, and can test across seven, eight and twelve panels available; however, it can only be used to screen for drug use. POCT’s cannot be positive and cannot be used in courts – should the need ever arise. They need to be sent to the lab to be confirmed that yes, there are drugs involved.
For a more comprehensive report, companies can send samples to Dynacare Laboratory, in London, ON and it often comes back 99.9% accurate within two to five business days. Dynacare can test for specific drugs, identifying specific substances and providing a quantitative level using seven, eight, and twelve panels as well as additional drugs.
Urine testing has its advantages and limitations too. It is relatively inexpensive, has a quick turnaround time, is accurate and is an industry accepted method. Still, it is not a perfect system. Urine testing tests for metabolite in the systems but it is processed by our livers and turned into metabolism, changing the molecular structure of the drug. The second challenge is the detection period. If you use cannabis once, then it can still show up on the tests a week later, but this no longer works as an impairment test because the time frame is not tight enough.
The Canadian Human Rights Commission, as early as February 20, 2017, stated: “It is well known that drug testing (such as urinalysis) is not an effective way to see if someone is impaired at that moment…This is why the commission recommends that employers, wherever possible, rely on observation, supervision and frequent face-to-face conversations as the more effective ways to recognize when an employee is impaired.”
Privacy is also becoming an issue. Privacy arbitrators have stated in recent years that what an employee does while off-duty is none of the employers’ concern. They ruled that it is only when an employee arrives at work in an impaired state that risk to workplace safety is created and an employer is then provided with justification to take action.
Hence, oral fluid testing might be a better option. It tests for the parent drug and has a 24-36-hour detection window, so the time frame is closer to when the impairment is noticed. This test is also less invasive and intrusive, which is a better fit with the Privacy legislation, and has less opportunity for contamination.
The challenge with this test is that it is not a good instant test, with few Health Canada approved products on the market. The second challenge is that current products are not very effective or accurate for THC testing. These challenges can be countered by simply sending the oral fluid to lab-based testing, which is 99.9% accurate, is available as a full panel and confirmations. It is currently only accepted under the COAA Canadian Model for reasonable cause and post-incident testing.
So, the recommended testing process is this: if time is not an issue then it is better to rely on the lab-based oral fluid test; if time is an issue then continue to use urine-based drug testing as a screening tool and confirm all inconclusive samples as Oral Fluid Lab-Based test.
Lastly, training is imperative because even with the best-written policy in the world, if no supervisor knows how to use it, then it becomes completely useless. Provide employee substance awareness training, supervisor training, and designated employer representative and program administrator training.
Ensure employees are aware of the content of the policies, fitness for duty requirements and employee responsibilities regarding safety concerns related to substance use and impairment. The companies should also provide recurring training – safety meetings and toolbox meetings – and keep attendance records of their employees. And make information available through the intranet and safety boards and such.
A company’s supervisor is responsible for identifying impairment in the workplace, and they should be trained on how to do that. They need to be able to identify signs and symptoms of impairments, how to manage situations like that and understand reasonable cause and post-incident protocols.
Finally, a company’s designated employer representative and program administrator need to understand how to implement the policies effectively. If they don’t understand the processes, then train them so they can apply them in the workplace.