HIGH HOPES FOR SAFETY
Trucking industry challenges feds for right to set zero-tolerance policies for pot use
Canada’s trucking industry is challenging the federal government over standards for marijuana impairment, arguing companies should be able to set zero-tolerance policies because of the safety consequences involved for professional drivers.
“(Professional drivers) are sharing their workplace with the public, so the standards they’re required to meet should be higher than the average person operating a passenger vehicle because the consequences of them being impaired (are higher),” said Louise Yako, CEO of the B.C. Trucking Association.
That demand, however, could prove challenging under existing employment law and human rights legislation, according to a legal expert.
The federal government proposed standards for what should constitute impaired driving under the influence of marijuana in its legislation to legalize the drug by next July.
The legislation proposes the use of saliva tests to determine whether a police officer has the probable cause to put a driver through more definitive testing.
However, Yako said the trucking industry is looking for stricter standards since marijuana doesn’t show obvious signs of impairment, like alcohol does, to give employers probable cause to test for impairment and because there is no definitive roadside test for marijuana impairment.
Yako said the industry’s lobbying is being led by the Canadian Trucking Association, but the provincial trucking associations “share a common concern.”
“For professional drivers, we’re recommending that it be zero,” Yako said, pointing to the federal government’s own task force report on proposed legalization, which indicated medical science hasn’t identified a safe level of impairment.
And trucking firms are looking for more latitude to conduct random testing of drivers, Yako said, beyond the existing conditions they can test under, which include pre-employment screening.
Yako said zero tolerance also aligns with the law for professional drivers in the U.S., which Canadian drivers who cross the border already have to abide by, including provisions for random drug testing.
B.C. doctors have raised concerns about the prospect of marijuana-impaired driving, pointing to Washington state’s experience with a doubling in the number of fatal crashes where drivers tested positive for marijuana in the year following legalization there.
However, employers will have to be cautious about setting standards related to marijuana use because of existing law, said employment lawyer Cindy Zheng.
“The key thing is that employers must have a reasonable basis to back up (their) position,” Zheng said. “You can’t just say, ‘People who get high are inherently dangerous, so you’re going to have mandatory testing,’ ” she said.
An employer would have to have expert analysis or evidence to demonstrate the testing they’re proposing decreases safety risks.
Zheng recommends employers establish a clear policy around impairment at work, by substances legal or illegal, including alcohol, prescription or non-prescription drugs, and marijuana, whether it is medicinal or non-medicinal.
Zheng said employers are sometimes surprised to learn zero-tolerance policies when it comes to marijuana could also be considered a violation of the human rights code.
However, marijuana-legalization activist Dana Larsen contends that fears over marijuana-impaired driving are overblown. He argued that studies haven’t shown any correlation between levels of THC in blood and level of impairment.