Hot Off The Press
Legalized Marijuana And The Canadian Trucking Industry

By John Edward C. Hyde & Nicholas Goldhawk

9 things all trucking employers need to know in the lead-up to pot legalization

The “recreational” use of marijuana will become legal in Canada, on October 17, 2018. Are you ready?

Driving a truck while under the influence of marijuana, has always been and will always be illegal, and cause for discipline by employers in both Canada and the United States. But the legal steps employers can and must take to prevent cannabis-impaired driving differ vastly between each country.

In Canada, long before the legalization of marijuana, human rights law has restricted employers’ ability to conduct mandatory drug testing, even for safety-sensitive positions. The general guideline in Canada is to consider drug testing as a last resort, only to be used in the clearest cases of necessity.

The law in the United States trucking industry is much different. This affects both American and Canadian employers – every Canadian trucking company must strictly comply with US trucking regulations in order to operate in the US. These regulations require frequent urine testing in many circumstances, such as before employment, after an accident, upon a reasonable suspicion of impairment, after being taken out of duty for a previous failed drug test, and at random intervals throughout a driver’s employment.

Complicating the matter is the impending legalization of marijuana in Canada. What impact will this have on drug testing in the trucking industry? Fortunately, for the most part, it will be ‘business as usual’.

1. In Canada, treat marijuana like you would alcohol

You should address recreational marijuana with your employees and ensure they know the law, but still use a common-sense approach. Drivers who travel exclusively on Canadian routes, cannot be randomly drug tested, nor can they be generally prohibited from using marijuana off company time, but a driver who shows up at the dispatch office with red eyes or smelling of marijuana, should be sent home.

2. Marijuana is still very much illegal in the United States

The situation is completely different in the US. Although certain states have decriminalized recreational marijuana, it remains classified as a “Schedule 1” drug federally, together with drugs like heroin and LSD. That means marijuana is strictly off-limits at any border crossing. Even seemingly trivial cannabis use or association can be grounds for being turned away at the border. Recently, for instance, investors in the cannabis industry have been slapped with lifetime travel bans to the US.

3. Employees who fail a urine test must be removed from duty under the US Regulations

As mentioned, the US trucking regulations strictly require trucking employers to subject drivers to regular urine drug tests. Any driver whose urine contains even a trace of controlled substances (including marijuana) must be immediately taken out of service and assessed by a substance abuse professional. The employee must then pass a return-to-duty drug test, followed by a series of frequent, random follow-up tests after returning to the road.Legalization of marijuana use in Canada has no bearing upon this requirement.

4. Canadian human rights law recognizes the predicament that trucking employers are in

Not being banned from driving in the US is recognized as a “bona fide occupational requirement” for drivers who operate in the US, or those who fall within a pool of drivers who are likely to be required to cross the border. For that reason, these trucking employers fall under a special human rights exception allowing them to meet the requirements of US law, including random drug testing.

5. Canadian police can administer roadside saliva tests for marijuana

As of July 2018, the Canadian government approved a roadside saliva testing device which reportedly detects marijuana within 6-8 hours after use. A failed saliva test constitutes reasonable cause to bring a driver in for a blood test. Blood tests showing THC content (marijuana’s main psychoactive substance) above 5 nanograms per 100 ml of blood, or above 2.5 ng combined with alcohol above 50 milligrams, can lead to impaired driving charges under the Criminal Code. Drivers with 2.5 to 5 ng of THC in their blood are subject to a $1000 fine. As of yet, there are no regulations specifically targeted at the trucking industry.

6. Canadian blood THC limits for drivers are enigmatic and unforgiving

Make all of your drivers aware that if they smoke marijuana, they are playing with fire – even those exclusively on Canadian routes. People above the Canadian blood THC limit may not feel or exhibit any impairment. As well, THC’s elimination from the blood depends on many factors, including dosage, body size, sex, and history of use. Doug Beirness, a committee expert for the Canadian government, commented recently that there is “no amount of cannabis that you can smoke that will not at some point put you over the legal limit.” See article.

7. All failed drug tests are the same under the US regulations

Under the US Regulations, any trace of controlled substances (including marijuana) in a driver’s urine sample are treated the same, regardless of the employee’s severity of impairment or addiction. This is problematic for marijuana users in particular, since traces of marijuana can be detected in urine samples long after any impairing effects have worn off. For occasional users, that is usually around 3-4 days. However, some trials have detected marijuana in urine samples of heavy users for up to 77 days. See article.

8. All failed drug tests are not the same for disciplinary purposes in Canada

For disciplinary purposes, the culpability of a failed drug test depends on the context. In assessing the appropriateness of discipline, Canadian Courts and tribunals can and will consider the nature and extent of the employee’s actual impairment, the legalization of recreational marijuana in Canada, the circumstances giving rise to a drug test, the employee’s past conduct, any human rights issues, and any other relevant circumstances. For instance, a charge of impaired driving following a police-administered test will be much more serious of an offence (in the view of Canadian Courts and Tribunals), than a failed random drug test administered under the US trucking regulations.

Cannabis-addicted employees have a right to accommodation in Canada

Under Canadian human rights law, employees are protected against discrimination on the basis of a disability or a perceived disability. Drug addiction is considered a disability. This means that if a driver is unable to enter the US as a result of his or her drug addiction, the employer must accommodate that employee’s disability, “to the point of undue hardship”. That may require, placing the individual on an unpaid medical leave of absence, provide alternative duties if available or, if the addiction is such that it does not render a driver unsafe, an employee could be re-assigned exclusively to Canadian routes, again if reasonably possible. Obviously, driving a truck is a safety-sensitive position. It is unsupervised, and without full attention to the road, is inherently dangerous, a risk to the driver and the public, alike. Common sense must guide every decision.

A final note: recreational marijuana use is not an addiction, it is not protected under Canadian human rights laws and, it can be cause for discipline – even after October 17, 2018. If a driver is precluded entry to the US on account of recreational use, and there is no perception of disability, there is no duty to accommodate. That said, each case turns on its own facts: discuss the facts and the merits with your HR professional and experienced legal counsel, before imposing discipline.