Canadian HR Reporter

June 13, 2016

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 June 13, 2016 2 NEWS Recent stories posted on Check the website daily for quick news hits from across Canada and around the world. WEB O N T H E ACROSS CANADA Vancouver sees jobs boom, but young workers still can't afford housing Province setting pace in job creation, but young workers can't afford to live in the city Suncor restoring more oilsands operations Additional 3,500 workers returning first week of June Liberals beef up shipbuilding strategy staff to address 'growing pains' Plan to double the staff working on national shipbuilding strategy Transat A.T. laying off 78 employees, closing Toronto call centre 63 positions in Montreal converting to 'hybrids' Bank of Montreal to cut about 1,850 positions in bid to trim costs $132-million restructuring charge related to severance Liberals move to rescind Conservative changes, revamp public sector bargaining Portions of 2013 bill will be formally repealed AROUND THE WORLD Injuries, too few work hours prompt home health aides to quit in U.S. Attraction, retention difficult due to low wages, inadequate training, demanding work, unpredictable schedules Air France workers on trial for assaulting executives Protesters had targeted airline's HR chief U.S. jobless claims fall more than expected last week Claims declined 10,000 to a seasonally adjusted 268,000 Health-care CEOs lead the way in 2015 U.S. compensation Utilities, services among lowest- paid sectors Protesters clash with police over France labour reforms French President Francois Hollande faces growing street protests and a wave of transport strikes over his decision to force through labour reforms. FEATURED VIDEO Increasing use of marijuana could cause problems on the job But imperfections around testing, legalities challenge employers BY SARAH DOBSON WITH MORE relaxed rules around medical marijuana, along with federal legislation looking to legalize marijuana in Canada in 2017, employers might be won- dering if the drug could become more of an issue when it comes to pre-employment or on-the-job drug testing. To some degree, we're heading into uncharted waters, said Georg Reuter, a partner at Richards Buell Sutton in Vancouver. "Once marijuana becomes legal, how do we test for impair- ment by marijuana in the same way we do for driving under the influence of alcohol? What are the legal limits? So, yes, we're heading into new territory." A lot of companies now proba- bly feel caught between a rock and a hard place — deciding whether or not they should tighten the reins, tighten the policies, to ex- clude users from their payroll or just accept what's going on and not potentially alienate otherwise qualified employees, said Lucas Richert, a sessional lecturer at the University of Saskatchewan. "Ultimately, as an employer, do you want someone taking an intox- icant like heroin or cocaine versus marijuana? Well, probably none of the above. But you're much more likely to catch someone consuming medical or recreational cannabis with a catch-all drug screening." Current regulations In Canada, aside from certain in- dustries such as transportation, most provinces don't have clear policies or precedents for dealing with marijuana, said Richert. "e legal architecture, I guess, much like the enforcement of marijuana across Canada, more generally, is rather piecemeal, a patchwork." For truckers travelling into the United States, for example, the rules are stricter to match those south of the border. "ey have very complex rule- making in the U.S. that requires all transportation workers who are in safety-sensitive positions to undergo mandatory testing, pre-employment testing being one of those circumstances," said Barry Kurtzer, medical director and chief medical review officer at DriverCheck in Ayr, Ont. In Canada, when it comes to drug testing, employers have to be able to identify there is sig- nificant risk involved with the job, he said, "to the point where it's reasonable to assess someone to ensure they have the skill sets and physical capabilities to do the job, and also the ability to react to emergency situations or any other special circumstances that would require someone to be fit and alert and have cognitive functions all intact." Beyond that, if there's a con- cern about significant misuse and abuse of drugs in the community and workplace, testing may be al- lowed, said Kurtzer. "Testing is for the most part fo- cused on… reasonable cause test- ing, return-to-duty testing follow- ing any previous violations related to drug and alcohol and/or rehabil- itation and then followup testing, which may be part of a return-to- work agreement or other circum- stances laid out by a company in re-engaging a worker following previous workplace violations re- lated to drugs and alcohol." And if employers do engage in pre-employment testing, they're exposing themselves to potential human rights claims that say they are discriminating against people who have a drug or alcohol depen- dency issue, said Reuter. If there is testing, it should be done after a candidate has been selected and made an offer of employment, and only if there is a safety-sensitive workplace or specific rules, such as those for truckers or airline pilots, he said. "ere may be justification for testing after the candidate is se- lected so that you're not accused of kind of pre-emptively excluding a whole category of people who fail the test." If an employer has a safety- sensitive workplace, it has to ad- ditionally show there is a track re- cord of incidents that make drug testing the only way to control the problem, said Reuter. "I think where this gets difficult for employers, people like Suncor would argue, 'e reason we don't have a problem is because we've have had alcohol and drug testing program so people are aware of that and don't show up on the job impaired because they know they might be pulled out of the line and tested.' So it's a bit of a chicken and egg problem." Testing challenges But even when testing is under- taken, there are challenges behind the process. For one, people have complained about "false posi- tives" — even though that concept is not really correct, said Kurtzer. When it comes to workplace testing, there are two types of tests carried out, he said. e first is an initial screening to identify whether certain drugs are present in an analytical specimen. "All it's doing is identifying that there's something there that needs further recognition — it's not determining that the test is positive." If the test is "non-negative," the specimen is sent off to the lab to provide confirmation testing. And every compound has its own mo- lecular fingerprint, said Kurtzer, "so there is no confusion between an innocent compound and illicit compound, for example, in a urine specimen. So there is no such thing as a false positive — every- thing is verified at the laboratory." But workplace screening is a mediocre indicator of perfor- mance in the workplace because it doesn't actually test for impair- ment, said Richert. "The drug screening tests search for… byproducts excreted from the body after the drug's been ingested, so what they're looking for is something that's happened in the past as opposed to performance in the workplace in the present." With alcohol testing, an em- ployer is able to determine fairly accurately current impairment when it comes to motor skills and the ability to function in any kind of safety-sensitive environment, said Reuter. "On the other hand, drug test- ing and things like particular test- ing for marijuana, doesn't corre- late at all well with the employee's current state of impairment, so there may well be residual test results that test positive long after the person's consumed the mari- juana and may no longer be cur- rently impaired." Canada is focused on imme- diate impairment as opposed to risk-taking behaviour, and im- pairment can include withdrawal effects such as a hangover, said Kurtzer. "Impairment from a medical perspective is not just immediate impairment; it's the after-effects, meaning the hangover effect, as well as the long-term complica- tions from the misuse of drugs and alcohol. So… that's why ran- dom drug testing has not really been embraced here in Canada because the focus always seems to be on immediate impairment as opposed to looking at the broader range of risk-taking behaviour." LIMITS > pg. 10

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