Building Better Cities
Our people and solutions make an
impact everywhere you look
We pride ourselves in building better cities and better
communities from the buildings in which we live and work,
to the roads that connect our cities and towns. We provide
construction solutions that include aggregates, asphalt and
paving, concrete pipe, precast and ready mix concrete.
LEGAL MATTERS
Regina: (306) 352-7648 Saskatoon: (306) 934-7555
• The first problem is one of false posi-tives.
Some common foods, such as pop-py
seeds, can produce a false positive.
Tainting samples with other substances
can create a false negative.
• The second problem is that existing
drug tests don’t provide a measurement
of present impairment. These tests can
show that a person has marijuana in
their system, but cannot tell how long
ago the marijuana was consumed. This
means that a drug test doesn’t necessar-ily
tell the employer if the employee was
impaired at a given point in time, or if
they were under the influence of mari-juana
while working.
• Lastly, there isn’t a universally accept-ed
point at which a person is said to be
impaired by marijuana use. Through re-search
and years of dealing with the
issue, the law has determined that a per-son
is impaired by alcohol when their
blood alcohol concentration exceeds
.08. There is no similar benchmark in the
case of marijuana impairment.
If you assume that drug testing may pre-vent
someone from getting or keeping a
job, one can see why the flaws in the exist-ing
technology have lead to restrictions on
the ability to drug test and on the ability to
invoke certain consequences as a result of
drug tests.
Beyond the weakness in the technology,
there are privacy and human rights law rea-sons
for restricting the ability to test and
rely on drug tests. Existing drug tests can
reveal whether an employee is pregnant
before she is ready to disclose that infor-mation
to her employer. The tests can al-so
reveal the presence of legal prescription
medication use, including for medical con-ditions
that carry a stigma and that some
people would prefer to keep private.
The legalization of marijuana shouldn’t
change any of these restrictions. In fact, it
may lead the courts to be more demanding
for more reliable technology before permit-ting
broader drug testing. So if one assumes
(which may or may not be a safe assump-tion)
that legalized marijuana will be used
more frequently, when and how might em-ployers
in a safety-sensitive industry be able
to test their employees?
First of all, demands from your client
that your employees undergo testing be-fore
working on their project does not
mean testing is permitted where it would
otherwise be improper. Testing is most of-ten
found to be reasonable when it arises
after a specific safety incident (“post inci-dent”
testing), where there are reasonable
grounds for suspecting present impairment
(“reasonable grounds” testing) and after a
return to work following drug treatment
(“return to work” testing).
Post incident testing can be conduct-ed
after an incident or a near-miss, where
there is uncertainty about the cause of
the incident and drug use is a possible
explanation.
The appropriateness of reasonable
grounds testing will depend on the circum-stances
of each case. The grounds have to
be objectively reasonable and need to be
based on the employee’s state and their
present behaviour. Employers should be
prepared to note and be able to describe
the grounds they acted upon.
Return to work testing can occur after
an employee has been away from work due
to drug addiction, particularly where that
problem resulted in the employee being im-paired
at work.
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