Canadian HR Reporter - Ontario

December 2018 ON

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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CANADIAN HR REPORTER DECEMBER 2018 2 NEWS Mental health and travel Research has shown employees who frequently travel for work have diminished states of mental health. We talk to the experts to find out why, and how human resources can help combat the problem. Memo to CEOs: Clear your schedule to help employees during mass layoffs Bombardier's CEO roasted for skipping important meeting Don't wait for the next disruption, HR — start now Lessons from GM, SAP and Johnson & Johnson A flu shot in the dark Should health-care employees be required to have a flu shot, or is it too much of an imposition? Chronic mental stress claims firmly in spotlight Tips for employers concerned about Ontario's new workers' comp policy Time-change shift low priority; B.C. premier says no to change 'It's a passionate issue but there are complications to our trading arrangements' BLOGS BRIEFS NEWS FEATURED VIDEO BLOGS BRIEFS NEWS FEATURED VIDEO BLOGS BRIEFS NEWS FEATURED VIDEO Recent videos, stories and blogs posted on www.hrreporter.com. Check the website daily for updates from Canada and around the world. Despite cannabis legalization, impairment testing still hazy Cognitive and behavioural testing methods gaining ground BY MARCEL VANDER WIER WHILE recreational cannabis has been legal in Canada for more than a month, the workplace test- ing process surrounding the drug remains unchanged. Safety-sensitive employers continue to turn to urinalysis and oral-fluid testing to determine the presence of cannabis in workers, though pinpointing levels of im- pairment in individual workers continues to be "quite ineffec- tive," said Alison McMahon, CEO of Cannabis at Work, a cannabis consulting and training company in Edmonton. "In either case, we're not actu- ally getting an indication of im- pairment," she said. "We're only getting an indication of recent use — even with the saliva swab." "Do I think that they're suf- ficient? No, I don't," said Mc- Mahon. "There's going to be employers that are going to get challenged around disciplining individuals for recreational can- nabis use, but not being able to show impairment." Regardless, legalization has put workplace safety squarely on the front-burner, said Melissa Snider- Adler, chief medical review officer at DriverCheck, a workplace med- ical testing company in Ayr, Ont. "It's allowed employers to engage in more conversations around safe workplaces and what that means, and around substance use in workplaces," she said. "People are talking about it. When people start talking about it, they develop better workplace alcohol, drug and fit-for-duty poli- cies, and part of that may include doing drug testing." Testing options Traditional drug testing options available to employers are urinal- ysis and oral-fluid testing, while blood testing remains too inva- sive, said Snider-Adler. Urinalysis testing can detect the presence of cannabis in the body for a period of days to weeks, de- pending on the worker's history of use, she said. A mild user may only test positive for two days af- ter use, while a chronic user could test positive for weeks following. Oral-fluid testing consisting of a saliva swab submitted to a laboratory provides a much nar- rower window of drug use, said Snider-Adler. "at picks up very recent use for THC (tetrahydrocannabinol)," she said. "It picks up what we call the parent drug, or the active drug, the one that makes you high, the one that causes euphoria, THC, delta-9 THC. at's what it picks up… e urine test is testing for the metabolite or the breakdown product, but the oral-fluid test is for THC." Companies have been test- ing oral fluid and urine for many years, said Snider-Adler. "is is not a new test, it's not a new science. It's just that there are more companies considering oral-fluid testing now in light of legalization." In response to legalized can- nabis, some safety-sensitive em- ployers in Canada have banned the drug entirely, as impairment can be known to last for weeks, she said. Others have stuck to urinalysis, while still more are switching to oral-fluid testing to narrow the window of impairment. While more companies have shown interest in oral-fluid test- ing, urinalysis remains more widely used because it is inte- grated into many safety frame- work models, collective agree- ments and employer policies, said McMahon. "While I think that there is an interest (in oral-fluid testing), and we're seeing a shift in that direc- tion, there's some kind of insti- tutionalization of urinalysis into some of our systems that doesn't make it that easy to just switch right away." Employers are deemed safety- sensitive when an employee's impairment could result in harm or severe consequence to them- selves, others or the environment, according to Snider-Adler. Some organizations do conduct random testing of employees, but the majority are still reasonable cause tests, completed if visible signs of impairment are present, or following an incident or near- miss, she said. Going beyond simple tests At present, there is no universally accepted method of testing for cannabis impairment, said Ryan Wozniak, vice-president of legal at Peninsula Canada, an HR con- sultancy in Toronto. But that doesn't give employ- ees free rein over their cannabis consumption. Employers need to implement policies that "prohibit the consumption of cannabis in the workplace and during breaks," he said. Non-invasive impairment test- ing methodology could also be implemented, said Wozniak, such as performance indicators and ob- jective observation tests. Some companies have begun conducting cognitive testing to determine impairment, rather than simply testing for presence of drugs, said Snider-Adler. However, cognitive and behav- ioural testing methods require further validity before they will earn widespread adoption, she said. "A lot of them go hand-in-hand with drug testing to give a bigger picture and more pieces of the puzzle that help you to see re- ally what's going on," said Snider- Adler. "I expect in the future that we will see more of these types of testing perhaps being utilized in the workplace." e legalization of recreational cannabis has refocused safety pro- fessionals on workplace impair- ment issues, said McMahon. "Obviously, there's a significant number of things that can impact whether somebody is impaired in the workplace, and fatigue is one of the largest ones," she said. "What's exciting about (cogni- tive testing options) is it would give an indication of a person's cognitive functioning or cogni- tive impairment level, but it's not necessarily focusing on one spe- cific reason." Advice for HR From a legal perspective, it is im- portant that any "final decisions" on employment are based on the results of laboratory tests, rather than initial screenings alone, said Snider-Adler. And employers do not have an "unequivocal right" to test employees for impairment, said Wozniak. While the law in Canada re- mains unclear as to what forms of mandatory or random drug testing are permissible, courts generally have a greater tolerance for drug testing policies in safety- sensitive work environments, he said. In general, random drug and alcohol testing policies that deny a person employment following a failed test are forbidden on the basis they unfairly assume the em- ployee has an addiction problem. "e bottom line is that em- ployers must implement policies that are reasonable and appropri- ate, having regard for the specific conditions present in the work- place," said Wozniak. "Employers can and should prohibit the use or possession of cannabis in the workplace by im- plementing, using and enforcing a proper drug and alcohol policy," he said. "e policy should clearly out- line the disciplinary procedure that will be followed in the event that an employee violates (it)." Accommodation to the point of undue hardship should also be accounted for in the policy, and zero-tolerance positions should be avoided, said Wozniak. General cut-off limits in terms of cannabis are 50 nanograms of THC per millilitre for urinalysis and five nanograms per millilitre for saliva swabs — but employers are able to set their own limit, said McMahon. Going forward, employers should continue to ensure testing policy is as defensible as possible, she said. Strong policy "indicates that if an employee is subject to drug testing and they're over a cut-off limit at that test, that there will be consequences; there will be disci- pline up to and including termina- tion, potentially." Urinalysis remains widely used because it is integrated into many safety framework models, collective agreements and employer policies. Credit: TippaPatt (Shutterstock)

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