Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 41 - Evidence - April 26, 2018
OTTAWA, Thursday, April 26, 2018
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-45, an Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, met this day at 10:30 a.m., to continue the study of this bill.
Senator Art Eggleton (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
I am Art Eggleton, a senator from Toronto, and I am chair of the committee. I would like my colleagues to introduce themselves.
[Translation]
Senator Seidman: Senator Judith Seidman from Montreal, Quebec.
Senator Dagenais: Jean-Guy Dagenais from Montreal, Quebec.
Senator Poirier: Rose-May Poirier from New Brunswick.
[English]
Senator Raine: Nancy Greene Raine from B.C.
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator Bernard: Wanda Thomas Bernard from Nova Scotia.
Senator Campbell: Larry Campbell, Galiano Island, British Columbia.
Senator Munson: Jim Munson from Ontario.
Senator Omidvar: Ratna Omidvar, Toronto.
[Translation]
Senator Petitclerc: Chantal Petitclerc from Quebec.
[English]
The Chair: Today we continue with our examination of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts. Today we are going to focus on workplace safety issues.
We have panellists from the following organizations: Chris Moore, Manager, Training & Education Services, Canadian Centre for Occupational Health and Safety; Hassan Yussuff, President, Canadian Labour Congress; Tara Peel, National Representative, Health & Safety, Canadian Labour Congress; Derrick Hynes, Executive Director, FETCO; Christopher MacDonald, Member, Director, Government Relations, J.D. Irving, Limited, FETCO; and finally, Murray Elliott, President, Energy Safety Canada.
In the case of the Canadian Labour Congress, their president will speak, and in the case of FETCO, the executive director will speak, but the other people who are present will be answering questions as well.
We have the entire two hours on this panel. I would, however, ask those who are making opening comments to limit them to seven minutes, please, so it will provide for more time for dialogue with the senators afterwards. Let’s start with the Canadian Centre for Occupational Health and Safety, Chris Moore.
Chris Moore, Manager, Training & Education Services, Canadian Centre for Occupational Health and Safety: Thank you, Mr. Chairman. The Canadian Centre for Occupational Health and Safety, for those who may not know of the organization, is a Schedule II departmental corporation, so we are part of the federal government. We are the national centre for workplace health and safety information and education. One of our largest areas of interest in the last couple of years, of course, has been cannabis and its effects in the workplace.
Our position on this — I guess you could call it a position — is that it is another workplace hazard, another potential risk for workplaces. It is not different in a lot of ways than many others. We tend to look at impairment as the issue as opposed to the particular substance that is causing the impairment. So the solutions for workplaces in dealing with impairment by cannabis, other drugs, alcohol, over-the-counter cough medicine or whatever is causing someone not to be able to do their job safely and with a clear head, the concern is that someone is fit to work.
So what we recommend companies and organizations do is to have a strong impairment policy and program in place. What that means is establishing the ground rules within the organization about whether cannabis or other substances are allowed on the premises, what the expectations are for employees — that is, that you are expected to come to work not being impaired — and what the consequences are if you do not follow these rules.
So there need to be very well-laid-out policies and procedures and then education for all employers, the supervisors and the workers themselves on what the policies and programs are and also on recognizing impairment.
Impairment from cannabis is, as I say, another hazard in the workplace. All health and safety legislation is based on the employer providing a safe and healthy workplace. In a sense, we don’t really see the legalization of cannabis as bringing anything really new to the workplace. Anecdotally, from discussions we have had with various industry groups, we know there is cannabis use happening now, and as I say, we tend to focus on impairment from the point of view of whether the person can do the job safely. That involves identifying safety-sensitive positions where being impaired could be problematic for the employee, for the workplace, for equipment in the workplace, for other workers and for the public.
In a sense,having cannabis on the radar for legalization has simply raised the awareness in employers, and although they think it’s something new, really, impairment is impairment and it has been an ongoing problem in workplaces and continues to be so. If anything, the legalization of cannabis is highlighting the issue and therefore making it something that employers are having to focus on where they may not have before. Those are the end of my remarks.
The Chair: Thank you very much. Well within the seven minutes. Next I’m pleased to welcome Hassan Yussuff, President of the Canadian Labour Congress.
Hassan Yussuff, President, Canadian Labour Congress: Good morning, chair and honourable senators. Thank you for the opportunity to present our views on Bill C-45.
The Canadian Labour Congress brings together Canada’s national and international unions from across the country, along with provincial and territorial federations of labour and more than 100 labour councils and district labour councils in various communities. Their members work in virtually all sectors of the Canadian economy, in all occupations, in all parts of Canada.
When it comes to workplace safety, no one has more at stake than workers do. In workplaces across the country, our members are at the greatest risk of death and injury when accidents occur. Unions support proactive measures that help prevent accidents, save lives and reduce injuries.
Since the Government of Canada announced its intentions to legalize recreational cannabis, employers have raised the issue of impairment at work, and they have demanded new ways to address it, most notably by subjecting workers to on-demand random testing.
We do not believe additional random drug and alcohol testing of workers is a necessary response to this bill. The current made-in-Canada approach to impairment testing strikes the right balance between reasonable and justifiable measures to protect safety and those that unnecessarily infringe on the dignity and privacy of workers.
Despite fear mongering by employers, there is nothing in the legislation that fundamentally changes the legal landscape on drug and alcohol testing in Canadian workplaces. Impairment at work has long been a disciplinable offence, and intoxicants have been barred from workplaces.
The employers have a range of tools, including testing under specific circumstances, to address potential workplace impairment.
The approach to impairment and testing in Canada is different from that in the U.S., but employers in Canada are equipped with the tools to address legitimate safety concerns. In the U.S., the goals of testing include the reduction of drug use in society as a whole and reducing performance problems unrelated to safety with a focus on punishment.
Canada has developed a more nuanced approach. Arbitrators and the courts in Canada have generally sought to strike a balance between the legitimate rights to privacy and the dignity of workers and the legal requirement to take all reasonable steps to ensure workers’ safety.
In its landmark 2013 decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., the Supreme Court of Canada made an important pronouncement on the state of Canadian jurisprudence on drug testing. The court noted the fact that mandatory random testing unilaterally, even in safety-sensitive environments, has been overwhelmingly rejected by arbitrators as an unjustifiable affront to the dignity and privacy of workers.
The court further stated that while the dangerousness of a workplace was a relevant consideration, it has never been found to be automatic jurisdiction for imposing random, on-demand testing. Instead, the courts accepted a testing of workers in safety-sensitive positions and industries as justifiable in three limited circumstances: if there is reasonable cause to believe that the employee was impaired while on duty; following a workplace accident or a near miss, where the cause could not be attributed to mechanical or other non-human failure and where there was the potential for significant harm as a result of the accident or near miss; or upon return to work after treatment for substance abuse.
If an employer seeks to impose random testing, they will need to provide evidence of an alcohol or drug problem within a safety-sensitive workplace.
Workers do not surrender their rights to privacy and dignity at the door when they arrive at work. Furthermore, monitoring and surveillance of a person’s legal activities outside of the workplace is invasive and leaves workers vulnerable to discrimination.
That does not mean that workers can and should show up for work impaired. It means that we have the tools, as outlined in the Supreme Court of Canada decision, as well as more common tools like appropriate supervision, to address the problem.
We believe there could be benefits from increased public and workplace education about the roles and responsibilities of workers and employers related to workplace impairment prior to this bill coming into force.
This bill should not be used as an excuse to upset the carefully crafted balance that gives workers and employers the tools they need to keep workplaces safe while protecting the privacy and dignity of workers.
The labour movement, of course, takes issues with workplace health and safety very seriously. We will work with governments and employers to ensure that there is no confusion about the fact that legalizing cannabis does not change the rules about workplace impairment.
Thank you so much; I look forward to any questions you may have.
Derrick Hynes, Executive Director, FETCO: On behalf of my colleague Mr. MacDonald, let me start by thanking the committee for this opportunity to present on Bill C-45. We represent FETCO. That stands for Federally Regulated Employers — Transportation and Communications. You now probably understand why we say FETCO.
We’ve existed as an association for over 30 years. Our members employ about 500,000 workers or nearly two thirds of all of the workers in the federal private sector. FETCO members are household-name organizations. A list of our members can be found in the appendix of the material that I’ve provided you with today.
It is important, though, that I paint a picture of the work our members do to get a full understanding of the safety risk of which we will speak today. FETCO members employ the following: air traffic controllers, crane operators, heavy equipment operators, pilots, train conductors, train engineers and truck drivers, to name just a few. While we are here today specifically to represent FETCO, it’s important to note that FETCO has been collaborating on the issue of the legalization of marijuana for the past two years with a wide range of employers and employer associations, both federally and provincially regulated. We were all active participants in the task force on the legalization and regulation of marijuana.
The tie that binds all of these organizations together? They all engage in safety-sensitive work, where workplace and public safety concerns are paramount. We provided two documents to assist in your committee’s deliberations. We’re happy to refer to those in the Q and A. Our key message is this: With the introduction of Bill C-45, the Government of Canada has failed to address the impact of recreational marijuana on the workplace. This is a serious oversight, with potentially catastrophic consequences for workers, employers, and the public at large. There is already a safety gap in Canada as it relates to the presence of alcohol and drugs in the workplace. The legalization of cannabis is only going to make this problem worse.
Evidence from U.S. states that have already legalized cannabis, such as Colorado, reveal startling trends. You can see some of this in the material we provided you with. This data shows that consumption is going to increase substantially when legalization occurs. This matters to employers because we know that the same increase in use is going to find its way into safety-sensitive workplaces.
Employers have no moral judgment on the legalization of cannabis. Our concerns are exclusively rooted in safety. We therefore ask the following: that your committee amend Bill C-45 in such a way as to introduce a mandatory alcohol and drug-testing framework in safety-sensitive federal workplaces that focuses on the full complement of testing approaches, pre-employment, reasonable cause, post-incident, return to work, and random.
A legislated fitness-for-duty framework will accomplish several objectives. First, it will serve as a deterrent for individuals contemplating being at work under the influence of alcohol or drugs, thereby reducing the risk of workplace accidents. Simply put, random alcohol and drug testing works. It is a preventive measure that changes behaviour and, by extension, improves safety.
Second, it will bring Canada into line with many other jurisdictions around the world who have chosen to make workplace and public safety a primary concern when developing balanced workplace safety rules. Random alcohol and drug testing exists in Australia, Great Britain, India and the United States, as just a few examples. The U.S. has been mandating random alcohol and drug testing in transportation since 1995, under DOT regulations, and many Canadian organizations are already affected by these rules. Companies operating cross-border, such as railways and trucking companies, must follow these mandatory rules while operating in the U.S. Our questions are simple: What is the difference between a truck driver in Canada versus the U.S.? Are the safety expectations and requirements not the same?
Third, a new legislative framework in Canada will provide certainty on workplace rules for all parties, including employees, unions, and employers. The same mandatory rules will apply in all workplaces in a uniform and fair manner. Policy will be set by the government, consistent with all other workplace safety rules in the federal sector, and costly, lengthy and confusing legal proceedings will be avoided. Workplace safety in the federal sector is mandated under Part II of the Canada Labour Code and the associated regulations. While these documents contain thousands of provisions related to workplace safety, there is not a single reference in either to the rules related to the safety risk associated with alcohol and drug use in the workplace.
The consequence of this, unfortunately, is that the rules get established by the courts. The leading case on this issue, Irving Pulp & Paper, was a split decision of the Supreme Court of Canada, with a strong dissent by three justices, including the Chief Justice. There are also dozens of other arbitrations and court cases in this space, some being contemplated currently.
The result? Employers are confused as to whether or not they can undertake alcohol and drug testing and, if so, in what situations. Clear direction is required from government. On this note, I think it is important to reflect on the words of the dissenting justices in the Irving Pulp & Paper case:
The New Brunswick legislature has within the scope of its legislative authority the power to take drug and alcohol testing outside the purview of the collective bargaining process, as some other legislative bodies have done in certain contexts. . . . Indeed, some experts have suggested there is an “overwhelming argument” in this country for “legislative direction and definition that would add consistency, uniformity of meaning, and predictability for all workplace stakeholders” . . . .That decision, however, is one for the New Brunswick legislature and not for this Court . . . .
Further, the ground is shifting in Canada. The Canadian Nuclear Safety Commission just moved forward, in November of 2017, with fitness-for-duty regulations that include alcohol and drug testing, including random testing.
The Transportation Safety Board report, also from November of 2017, in the Carson Air crash, strongly endorsed the use of alcohol and drug testing, including random testing, for the aviation industry.
There is a noticeable legislative gap in Canada that needs to be addressed.
Finally, a quick note about privacy. Some groups will argue that alcohol and drug testing infringes upon an individual’s privacy. We don’t believe this is accurate. Employers know they have no authority over the choices made by employees during their off-work hours. However, employers expect employees to work safely and not to be under the influence of alcohol or drugs while at work. Workplace and public safety must take precedence over individual privacy rights.
Bill C-46, the companion bill to Bill C-45, related to impaired driving, will allow random roadside alcohol testing, a provision that the government believes meets the Charter test. If privacy rights are outweighed for an individual driving a single automobile on the highway, the same logic must apply to a pilot flying a plane with 200 passengers, a train conductor hauling 50 cars of chemicals, a bus driver carrying 60 passengers, a truck driver operating on a major highway, or any worker whose workplace actions could impact the life of a co-worker or the public.
For this reason, we believe a legislated solution is required. We ask that you amend Bill C-45 to accommodate these important concerns. Thank you.
The Chair: Finally, from Energy Safety Canada, Murray Elliot.
Murray Elliott, President, Energy Safety Canada: Thank you, Mr. Chair. Thank you panel members for inviting Energy Safety Canada to participate in this important hearing. I’m grateful for the opportunity to speak to you about the workplace safety implications of legalized cannabis. As a national safety association for the oil and gas industry, Energy Safety Canada advocates for worker health and safety. We are committed to the safety of our workers and the communities where we operate.
The national oil and gas industry is inherently safety sensitive, given the materials and equipment used. Different components of the industry, including storage, transportation, drilling, processing, et cetera, all pose significant safety risks.
Further, given the flammable nature of natural gas and oil, risks are increased in the event of a leak or spill. Workers are mobile and travel from one site to another, frequently accessing public highways and going through small communities. As a result of the hazardous nature of industrial work sites, owner companies and workers must exercise the utmost care and attention. Oil and gas workers’ use of drugs, including cannabis, whether casual, prescribed or arising from a dependency, has the potential to create unacceptable safety risks. Given the carry-over effect of cannabis, these risks can occur regardless of whether use occurs at work or in close temporal proximity to when an employee will report to work.
Our concern is that legalization will normalize and increase the overall use of cannabis, introducing the potential for increased risk. Industry can expect increased instances of impairment in the workplace and a corresponding increase in safety incident rates. Studies confirm there is a correlation between cannabis use and injury. For example, one study showed male cannabis users had a 28 per cent higher rate of hospitalization due to injury than non-users. Female users had a 37 per cent higher rate of the same. There can be no doubt that cannabis use is incompatible working in safety-sensitive environments. Cannabis use by drivers has increased accidents and fatalities.
Performance deficits associated with cannabis are incompatible with working in safety-sensitive environments and have been demonstrated to last after use. Studies have indicated that performance deficits can last up to two days after using low doses of marijuana.
Over the last decade, the use of alcohol and drugs in our industry has been a pressing safety concern. The proposed cannabis act adds another layer of complexity to this existing issue. The implications of workers attending work unfit for duty in a safety-sensitive environment can and has resulted in serious safety consequences that could affect not only workers but also the environment, the surrounding communities and the public.
Oil and gas employers have significant legislative obligations to ensure the safety of their workers, including maintaining a safe work environment. Employers in the oil and gas sector must address workplace hazards, including those associated with alcohol and drugs. If a workplace hazard is identified, employers have a legal obligation to take corrective steps to eliminate or, if not reasonably possible, to control the hazard.
The Criminal Code also imposes a duty on employers to ensure a safe workplace by imposing a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
We believe these legal obligations become more difficult to fulfill with the legalization of recreational cannabis, particularly given the current limitations around workplace testing. Presently, there are no tests for impairment, only presence and likely impairment. This presents a significant concern to employers who are legally required to keep employees safe while at work.
Further research needs to be conducted to provide a standardized testing solution for impairment. We ask the Government of Canada to recognize the reality and enact detailed alcohol and drug legislation that will equip Canadian employers to effectively manage risk, operate safely and meet their legislative duties.
Specifically, we would like to see a practical, legally acceptable workplace roadside testing protocol for cannabis, including identification of acceptable technologies and standardized methodology.
Workplace alcohol and drug testing regulations permit employers to test safety-sensitive workers on a pre-employment and random basis. With the right controls, legal framework and legislative certainty in place, the application of random testing would improve employers’ ability to manage the risk to workers and to the public.
Amendments to the Canadian Labour Code to clearly prohibit workers from entering a workplace under the influence of cannabis or any other drug without prior medical authorization and employer approval, and, finally, further education and research on the impacts of cannabis and impairment and the appropriate testing technologies must go hand in hand with the legislation.
We believe these changes would give employers the tools needed to manage the risks to workers and the public presented by Bill C-45. One of the stated purposes of the cannabis act is to protect the public health and public safety. We believe the impact of legalizing cannabis on safety-sensitive workplaces needs to be addressed specifically.
With that, Mr. Chairman and committee members, thank you for including Energy Safety Canada and our perspectives in your discussion today. We look forward to your questions.
The Chair: Thank you very much to all of you for your opening presentations. You have given us some different perspectives. That will be the basis, I’m sure, of a lot of questions.
To my colleagues at the table, I would suggest five minutes each. That’s counting the questions and the answers. The more you economize on the preambles, the more questions you get in, and also direct the question to one of the organizations that are here. If you ask for all of them, that will eat up your five minutes very quickly.
Senator Petitclerc: Thank you all for your presentations and for the different perspectives. I hear everywhere about the big focus on safety and health.
My first question is for you, Mr. Moore, because you talked a lot about education. You said something that resonated with me. You said that maybe one of the consequences of Bill C-45 would be that it could highlight an issue that already exists in terms of workplace impairment due to cannabis and other substances.
I know you have done a lot of work on education. Would you go as far as saying this bill will help in terms of providing you the opportunity for educational tools, or research, or strategy to implement? Then I want to hear from you about the e-course that you have developed.
Mr. Moore: To answer your first question, I don’t want to make it appear as though recreational cannabis is a great opportunity for employers, because clearly that is not the case.
What we have found, however, over the last couple of years, is that when it has been in the news, when it has been coming, we have received a lot of requests for information and for education and training from organizations, from companies. It’s like, “We know this is coming. We don’t know what to do.” Our measured response to that has been, “Yes, it’s coming, but maybe you’re focusing too much on cannabis as the issue and not so much on impairment and fitness to work, which is the concern that is raised by cannabis and is something that companies should already be addressing.”
So in the sense that it has raised the issue, raised awareness of safety-sensitive positions and impairment generally in the workplace, I think that has been the opportunity that we are seeing right now.
Senator Petitclerc: Thank you. My next question will be for Mr. Hynes.
Everybody made me think about education and awareness versus drug testing or a combination of both. I’m curious to know how effective drug testing is, not in having results but in changing behaviour. Do we know about that? Is there any research or results? That’s one part of the question.
Mr. Hynes: I’m going to start, but then I’m going to defer to my colleague, Mr. MacDonald, to follow up.
Our evidence suggests that there are deterring effects of testing, that when a random alcohol and drug testing policy is put in place in an organization, over time you see a reduction in the number of positive results, which is really the result that you’re looking for. You’re looking for a change in behaviour. It’s not meant to be a tool to be used for punishment. It’s meant to be a preventive tool at the front end to reduce use.
Chris, you probably have better evidence to speak to.
Christopher MacDonald, Member, Director, Government Relations, J.D. Irving, Limited, FETCO: Thanks, Derrick, and thanks, senator, for the question.
We do have some evidence. I just want to point to it in the package that we provided. There is a four-page document, and an appendix to that document specifically touches on the issue of deterrence and cites the examples from the United States, from the London underground and from New South Wales. All of the data is very consistent in that as soon as they introduced random testing, the numbers dramatically reduced.
In fact, there is some evidence of the same thing when they have done the random alcohol testing roadside that Bill C-46 deals with. The evidence in the jurisdiction that introduced that was that there was a dramatic drop in the use of alcohol. It’s a proven deterrent, I would say, in a nutshell.
Senator Petitclerc: I come from the world of sports, so I’m interested in knowing how effective the testing is. I assume your testing is not anti-doping at the WADA level. How effective are those tests, scientifically? Do we know that?
Mr. MacDonald: Alcohol is pretty straightforward from the perspective that most people accept the Breathalyzer, and there is some clear evidence on that.
As Mr. Elliott alluded to, certain organizations, like the Toronto Transit Commission and CN, are now using saliva testing. It’s a saliva test where their medical experts would say there is likely impairment. I would say that testing has come a long way in the last number of years. It really is at a level where they feel comfortable saying people who have positive tests are impaired.
Senator Petitclerc: Thank you.
Senator Seidman: Thank you all very much for your presentations and for being with us this morning.
My question is for you, Mr. Hynes. In your submission to the task force, you recommended the government should delay legalization until experts agree on an established definition of “marijuana impairment” and the technology exists to test for impairment to the standard in a proven and reliable manner.
Do you still recommend delayed legalization? Do you think employers are prepared for addressing impairment in the workplace after legalization?
Mr. Hynes: To the second part, I would say employers are not fully prepared because of what I alluded to in my comments around a real lack of understanding of what the rules are. Certainly the jurisprudence points in a whole bunch of different directions, so it’s not really as simple as pointing back to one Supreme Court decision and saying, “Okay, now we understand the rules of the game; let’s proceed.” It’s fair to say that we do not really have a clear understanding of the way forward.
We wrote that submission almost two years ago. The testing has actually come a long way since we wrote that submission. To the point my colleague made earlier, the Toronto Transit Commission rolled out a program recently. They have some testing tools they’re using that they believe — and their experts will confirm — are pretty close to pointing to a likely impairment and usage within the last limited number of hours before the saliva was actually collected.
We’re feeling more confident that the tools are coming along. Could we be further along? Of course we could. We are not quite where we are with the alcohol testing, so there is still more work to be done. But we certainly think there are tools out there that could be used in the event that we were able to roll out testing in a more comprehensive and coordinated way.
Senator Seidman: Mr. Elliott, I am wondering if you want to respond to that as well.
Mr. Elliott: I would certainly agree with Mr. Hynes on what he is saying regarding the progress on testing. We at Energy Safety Canada are just completing work with the Construction Owners Association of Alberta to create the Canada model for alcohol and drug programs. We create a standard model that then all of our member companies or anyone can pick up from the websites and use to build their own drug and alcohol programs. It’s about managing impairment in the workplace.
So people can put the right things in place to effectively manage most of the risk, but as we have stated, the challenge is that we don’t have all the tools. The testing is great, but the additional benefits of random testing would be very helpful.
Senator Seidman: Do I have a few more minutes here?
The Chair: Yes, you do. By the way, if any other witnesses want to comment, just signal to me. If it comes within the five minutes and it’s agreed to by the senator who has the five minutes, just signal to me or to the senator and we can work you in.
Senator Seidman: Thank you, chair. So we heard about safety-sensitive employment, and as a Canadian, I appreciate that. I fly in a plane and I’m on a train and I drive a car on the road and there are trucks around me, so I’m sure all Canadians can relate to the membership that you represent.
I’m particularly interested now in this legislated fitness-for-duty framework and the fact that you said Canada is not in line with many other jurisdictions around the world, including Great Britain, the United States and Australia. So why is it, in fact, that we don’t have rules so that employers have some ability to do this and to ascertain that there isn’t a lack of safety on the part of their employees for whom they may be, in the end, responsible or liable?
Mr. MacDonald: I’m happy to take that question, senator. Thank you very much. It’s a really good question you’re asking. We’re asking the same question.
As an example, at my organization, we have been doing alcohol and drug testing since 1995 because we are a cross-border trucking operation. The United States has done a full sweep of how they deal with this situation, so the airline pilots, the train drivers and the truck drivers. It’s no different than in the U.K., and it’s no different than in many other places.
Just so you understand the significance, in my mind, of this issue, in 2015, 10 pilots in the United States had positive alcohol tests. It doesn’t sound like a whole lot, but it happens. In India, where they test the entire flight crew before every flight — the entire flight crew, so you know you will be tested — they had 43. So it happens.
Once again, for us it’s a preventive measure. It’s a check and balance. All the stats back up that deterrence works. Is it perfect? Will it cut it to nothing? No, that’s not going to happen, but it works. It works dramatically.
There are some stats that I won’t refer to in our document that clearly talk about a study that was done in the United States after they introduced their whole suite of testing programs where the numbers went dramatically down, so we’re asking the same question. We agree that the increased use of marijuana is one aspect here, but as Mr. Moore says, we are already dealing with a problem. We need to address the problem, and the problem is only going to get worse. The best way to address the problem, in our mind, is to have a full suite of testing that is used as a deterrent. I hope that answers your question.
Senator Seidman: Yes, it does. Thank you.
The Chair: I’m going to insert one question in here that follows up on this whole theme.
One of the things we have been told by some medical experts, scientists and researchers in all of this is that with cannabis, unlike alcohol, the THC level can remain in the system for maybe weeks. You could detect this, but there is not an indication that, in fact, a person is impaired. You and others have indicated that the science on the testing is not exactly the best.
How can you justify random testing on that basis? I would like your answer to that, and I would like to hear from the Canadian Labour Congress as well.
Mr. Hynes: Great question. Certainly, we have seen some developments in this space that are positive in getting a better understanding of confirming the level of impairment. We spoke earlier about the recent evidence in the policy being rolled out at the Toronto Transit Commission. Their medical experts, who have spoken on the record in front of arbitrators, maybe judges, have actually acknowledged they believe that the positive test that emerges from their test related to marijuana does indicate likely impairment, because it is use that will have occurred within the previous — I want to say the numbers are four to six hours. I will have to come back to you with the exact numbers. But because it is so close to the actual consumption, their experts would say they believe there is a level of impairment there that would inhibit a person’s ability to do their work safely and to be fit for work.
Mr. Yussuff: First and foremost, there are no agreements on the science of this at this stage. Everybody will cite some reference that they would like to support their position. There is no agreement on the science. It’s not just me saying that; think if you speak to the scientific community, they will tell you the same thing.
The reality is, if you are going to use a particular method to determine someone’s ability to do their job, I think you’d better be certain, because you are dealing with their livelihood. It is clear that with the legalization of recreational cannabis, we need to do more education to ensure the current rules, as they are, do not permit a worker to come to work impaired, whether it’s alcohol, cannabis or any other drugs, for that matter. Those rules have not and will not change as a result of this legislation.
It’s critical that we understand the context in which we’re dealing. We have, of course, jurisprudence before us by the Supreme Court of Canada. It’s the highest authority in this country that has the ability to determine the legality of employer-imposed drug and alcohol testing. The Supreme Court has said this is unwarranted and unjustified. However, they did agree that there are circumstances in which you can introduce it, providing, of course, you can demonstrate that there is enough evidence to do so.
All of the studies that my friends have cited here are American studies. The American approach to this issue is fundamentally different than what we have done in Canada.
Arbitrators have ruled. Some workplaces are currently introducing policy which is before the courts and before arbitrators, and we’re litigating them. We will end up back at the Supreme Court. Most recently, one of our employers in Alberta, Suncor, introduced one. The courts, of course, have struck down their unilateral decision to make such an imposition on workers. I assume the Supreme Court will eventually hear that case again, but essentially, right now, we have jurisprudence.
We work very diligently to ensure the health and safety of workers, and we work with employers in a very diligent way to ensure our workplaces are safe.
I think there needs to be recognition that just because there is the legalization of recreational cannabis does not change the responsibility of workers in regard to coming to work fit for duty. In that context, that has been the rule and the law currently in this country.
[Translation]
Senator Dagenais: Thank you to our guests. My first question is for Mr. Yussuff. Workplace insurance rates vary depending on whether a worker smokes or not. Workers are required to declare whether they are a smoker; if they do not, they risk losing their benefits in the event of a claim.
I’m going to talk to you about the insurance that covers workers. Would it be an invasion of privacy if an insurance company asked workers if they smoke marijuana? Do you believe that premiums would increase for individuals who reported smoking cannabis? Could this increase the employer’s share of premiums?
[English]
Mr. Yussuff: First of all, I think it’s a violation of workers’ privacy and the privacy law in this country. I don’t think any employer has the right to ask that question.
At the end of the day, I’m an employer in regard to my employees in the CLC, and I don’t ask my employees that question because I believe it’s a fundamental violation. As a matter of fact, if I did, I think I’d be before the Human Rights Commission defending us in terms of violating their privacy as to what they do outside of the workplace.
What they do within our workplace, of course, we have some control over. It is fair for me to ask somebody if I believe that they are impaired coming to work. I have a right to ask them that question if I believe that’s the situation. But it’s not for me, as an employer, to ask an employee what their behaviour might be outside of the workplace.
[Translation]
Senator Dagenais: Mr. Yussuff, a number of insurance companies ask this question of their policy holders. I was once a supervisor in an insurance company, and people who reported that they were non-smokers had a lower premium. I agree with your answer.
My next question is for Mr. Moore. Mr. Moore, the Canadian government says it will allocate part of the cannabis tax to the provinces to help them cover the significant costs associated with this legislation.
In business, there will certainly be costs associated with managing this situation. Are employers receiving enough support from the government to get organized and ensure the safety of workers, that is, those who will smoke marijuana and those who will work with them?
[English]
Mr. Moore: Do employers have sufficient support from the government? That’s a very good question. I don’t have a very good answer for you.
My organization, the Canadian Centre for Occupational Health and Safety, receives a certain amount of funding from the federal government, about 50 per cent of our operating budget. From within that, we put a lot of educational materials together, a lot of programs for employers, including those around impairment and cannabis. We don’t get direct funding from the government to do that.
We will certainly also go to specific government departments. We have, for example, worked with Health Canada in the past, when the WHMIS — Workplace Hazardous Materials Information System — was revised in 2015 and received funding from them for developing public education programs. We may be able to do something similar around cannabis, but at the moment, we’re doing things on our own from within our own budget.
[Translation]
Senator Dagenais: Thank you very much, Mr. Moore.
[English]
Senator Manning: My question is for Mr. Yussuff and maybe Mr. Hynes.
We touched on the need for more education. We talked about privacy rights. We talked about the lack of science. We talked about the rights of employers to have safe working places. We talked about the 2013 decision by the Supreme Court. Mr. Hynes took part of that decision and worked it into his statement. Mr. Yussuff took part of that decision and worked it into his statement.
I’m just trying to find the balance — I’m sure we all are — to make sure that if I’m on an airplane, the pilot is drug-free and alcohol-free. I’m sure we are all in that same situation.
Are the employers and the employees ready for this piece of legislation, or is there a need to step back to make sure that we have the science in place to ensure that people are educated properly on the use or the misuse of drugs? I’m concerned that we may not be where we should be. I would like to know, from both ends of the spectrum, what you think.
Mr. Yussuff: Let me start in the context of our relationship. We have a very collaborative relationship with FETCO. We work at the federal level, both CLC and FETCO, in a collaborative way to ensure that when federal legislation is brought in in the federal jurisdiction that affects both of us, we try to collaborate as best we can with the Government of Canada to ensure that whatever the government is drafting is inclusive of our views and opinions. For the most part, I think the government gets it right. Every so often, of course, there is something that goes awry.
Senator Manning, I want to correct for the record that I did not take parts of the decision of the Supreme Court. I took the majority decision of the Supreme Court that I cited. My friend took the minority position of the Supreme Court. It was the majority position that I gave you, which is the rule of the Supreme Court.
With respect to the legalization of recreational cannabis — and I have said this to my friend and I have said it to the government directly — I do not believe we have done enough in regard to the public education that’s required, because I think there is a sense that this is going to change and you can do whatever you want. The rules as they are currently prevent many things with regard to employees using this, with an individual operating a vehicle or whatever, and those rules have not changed. I think we need to make it abundantly clear that while it will be legal, to ensure people don’t have criminal records, the reality is you’re not supposed to use cannabis and drive a vehicle, you should not be using cannabis and operating an airplane, and you should not be using cannabis and going to work where you could endanger the lives and health and safety of others you are working with. We are consistent on that position.
The reality is we do not support random drug testing. We don’t believe it’s necessary because employers know there is a new rule coming in. They could post whatever they want on their bulletin board. They can do all kinds of education with their workers to ensure they are fully aware that it will not be tolerated, and we will be there to support employers doing that. Fundamentally, the workplace should be a place of safety with respect to how we treat each other, but also how we take responsibility to ensure we’re not endangering the lives of a worker because we’re coming to work in an impaired fashion.
Mr. Hynes: I have to start by agreeing with at least the first half of everything my friend said, which is that we do have a collaborative relationship. It’s a mature one, and we generally do collaborate in a tripartite way with government when legislative change is introduced. And I have to be honest, 90 per cent of the time we end up with a solution that generally is satisfactory to all parties. There are areas on which we disagree, and what should be obvious to you by now, today, is that this is one of them.
We have some areas of commonality. Obviously we are all committed to safety; no doubt. We are all committed to education being an important piece of this. The government has committed resources to that and we fully support it.
We do believe where we diverge is around the issue of testing. Our position is that we have to find some reasonable solution here that draws a line between the privacy rights that we acknowledge do exist with workplace and public safety on the other side. In the two years we have been on this file, we have always contended that there must be a way we can find a solution that meets that test.
The Supreme Court of Canada decision is one case in one particular organization in one particular example. There are dozens of other arbitrations and court cases that have ruled on this issue, and each time they rule on the specific circumstances of that individual case. We are asking for a comprehensive way of approaching this through the front door, where we develop a set of rules. We all know what they are. We all have to follow them.
My friend likes to point out the employers don’t have to come to the government and ask for regulations. Here is one where we think we need some. Are we ready? We think this bill exposes a gap that already exists and is going to make it worse. When the consumption of cannabis becomes more normalized, the statistics out of the U.S., in terms of usage, are compelling. Usage will go up. We believe that convincingly, and we believe the risk is that usage will find its way into workplaces.
We’re not looking for a solution that creates a blanket set of rules for every employee. We are looking to pull out those important safety-sensitive roles, where we believe the safety risk trumps the individual privacy rights when it comes to the testing.
Senator Raine: Thank you all for being here. I’m sure you can see that we take this issue very seriously, and I think all of us are a little concerned about the short time frame that has been suggested. I would like to focus a little bit on testing for impairment. There is a lot of ambiguity around how that would work.
The other day I was speaking to two RCMP officers and I asked them whether there is a test for impairment. I know from discussing with medical doctors that we are all individually different, so our ability to have THC in our system and not be impaired varies with each individual and their usage.
First of all, do you think, if you are on medical marijuana, it would be handy to have a regime where you can be permitted to have THC in your system for medical reasons, but in safety-sensitive workplaces there could be a request for zero tolerance? That would be my first question.
I know that may not sit well, but when I’m looking at zero tolerance, I would say if there is a test and you don’t pass the zero that you have remedial action, not thrown out the door, because we have a lot of very good people and we need everybody to work in our country.
My second question that I asked the RCMP was this: I’ve been told that the best test for impairment, no matter what the agent of impairment, is can you put your finger to your nose and can you walk a straight line. Are we looking at doing some kind of apps where you would be able to photograph on a mobile device a person’s response to “will you do these three things,” and maybe put a couple of cones out and photograph it? The officer said they agree that’s the best way to test for impairment, but they don’t want to have to defend a subjective test in the courts.
Perhaps we should think outside the box, away from the Breathalyzers and the saliva test, and look at something that would work in the field.
I would like to have the comments of Mr. Hynes and Mr. Yussuff.
Mr. Hynes: I am going to start and defer to my friend, who is a much greater expert than I when it comes to testing. What I will say is, on your point around medical marijuana, when we’ve had discussions and looked at this issue, there are really two buckets of information here.
On the one side, there is the medical use of this drug, for which there is human rights legislation that employers adhere to today. If an employee is using such a substance, any substance that is prescribed by a medical professional, an employer has a duty to accommodate that employee under the Human Rights Act. That is already being done and isn’t going to change in the future. Then we have the recreational piece, which is the one that really causes us a greater amount of concern because the controls around that and the knowledge around that are more unknown.
Chris can speak more clearly about the testing.
Mr. MacDonald: Senator, your question is a good one. I would re-emphasize what Derek just said. In our organization, as I mentioned, we have been doing this for a long time. We deal with medical marijuana. That’s just a fact; people have prescriptions. Obviously you need to manage it, especially in a safety-sensitive environment. Are there other options that are available to take, for instance? The basic test, and it was touched on before, is whether they are fit for duty. That’s the real question at the end of the day. Maybe they’re taking Tylenol 3, maybe 15 of them; it’s a legal substance, but they shouldn’t be driving a truck, as an example.
We manage around that issue today. Medical marijuana is certainly more complicated than other issues. Our obvious concern with recreational marijuana is based on Colorado, and we have some stats. With the increase especially in the adult population, we’re going to be dealing with more of this. That’s the big concern at the end of the day.
I understand your question on the testing. I’m not a testing expert per se, but I keep going back to what has been done. The Breathalyzer is no different from what you said for marijuana. I might be 0.04, you may 0.08, but there is a recognition that the courts were satisfied with 0.04. We consider that impairment.
You will never have a perfect impairment test. Where they’ve come, and we have mentioned it, TTC and CN and using saliva. It’s not immediate. You have to send it to the lab. You may have a three-day lag, but that testing is basically there. In our minds, the appropriate measure is to go with the saliva testing because it’s really gotten to that point.
Mr. Yussuff: Let me be brief. We don’t have, and I don’t think there’s any agreement, on what test is accurate with regard to cannabis. There is no agreement. My friends are citing testing that is being used. That does not mean we agree on this. Employers have decided this is their approach to it, and so be it. Those will be litigated through the process and will be determined.
With regard to alcohol, yes, there is agreement. Generally, most of the tests have been around as long as it’s been established to have scientific value and of use, of course, to ensure they are accurate, and I think that’s been included.
On the last point that my friend addressed, there is recognition of duty to accommodate individuals for pain or whatever that needs to be accommodated. Those requirements are such that people will not be in sensitive positions in which if they are using cannabis for medical reasons it could affect the lives of other people within the workplace.
Senator Poirier: Thank you all for being here and for sharing your comments, concerns and recommendations with us. It’s greatly appreciated.
I have a couple of questions. The first is for Mr. MacDonald. Your company has made recommendations to the federal government, including having a regulatory alcohol and drug testing framework implemented for the employees and having that framework be aligned with the United States.
Can you tell us more about the recommended framework and what steps are required to be aligned with the United States?
Mr. MacDonald: Sure, senator. What we’re referring to there is what I touched on before. Since 1995, the United States has introduced legislation in a number of places, but in our case we refer to USDOT Part 382, which governs commercial motor vehicle drivers. Being from New Brunswick, you would be familiar with Midland and Sunbury, some of our companies. We can’t cross the border unless our drivers are in a pool, are randomly tested and are subject to pre-employment, post-accident, reasonable cause — a whole suite of testing that’s in U.S. legislation. Once again, that’s since 1995, so for 23 years we’ve been doing that.
I’m not suggesting for a second that we holus-bolus take the United States example and adopt it in Canada, but they’ve certainly done a tremendous amount of work on it. They’ve got 23 years of experience, and their legislation is quite detailed and, I’d say, quite accurate. I think there are some lessons we can learn from it and things we could take from it, for sure.
We would think that their suite of testing and the types of testing they do make sense. Cut-off levels would probably need to be discussed. But that’s really what that provides for. It’s no different for the railways. It does not apply to Canadian pilots who fly into the United States, and that’s an issue. If you listen to the TSB reports, that’s a concern. I hope that answers your question.
Senator Poirier: Just to continue on that, the Committee on National Security and Defence heard from immigration lawyer Len Saunders about the concern that the United States may deny people crossing over the border. Is that of any concern to your members? Is that an issue?
Mr. MacDonald: We’re concerned about that. We all know what the U.S. administration is like these days. We’re fighting trade disputes up the yingyang, quite frankly, and they don’t look at this issue like Canada is looking at it.
One of the concerns we had from a trade perspective is whether they are going to do something. We don’t know. It’s hard to know what they’re going to do. I don’t think anyone can predict it, but it is a concern, for sure.
Senator Poirier: In your list of members, you have people like Canada Post, Purolator, UPS, all these companies that do home delivery. We know that there has been in the past and will probably continue to be — more and more as recreational marijuana becomes available and is legalized — marijuana by mail that’s being delivered by these workers.
Do you see that there could be an additional risk to the employees who will maybe be carrying a higher limit of marijuana in their delivery vehicles? Do you see that as being a concern or not?
Mr. Hynes: You mean in terms of the value of what they’re carrying?
Senator Poirier: Yes.
Mr. Hynes: It has come up — not specifically from Canada Post, but it certainly has come up to me in conversations I’ve had with the employer community writ large that this substance is of some value. When you consider a tractor-trailer-load of it going down the highway, for example, I have heard concerns around potential security issues that may be at play. So it certainly is part of the conversation. It’s not one that we necessarily came to discuss today, but it is one that I’ve certainly heard about, yes.
[Translation]
Senator Mégie: My question is for Mr. Moore. If I have properly understood, legalization would not change anything because workers are already smoking, but the bill will perhaps raise the awareness of businesses about the issue of impairment.
According to Mr. MacDonald, pilots already undergo alcohol testing and some of them have been prevented from taking control of their aircraft, which I find reassuring. However, I am shocked because if it is only now that the legislation is raising the awareness of employers, how is it that this was not already done before? Have I misunderstood?
[English]
Mr. Moore: My interpretation of that would be that because alcohol has been legal for many years, many employers feel that they already have a handle on that. They are already dealing for that. It’s an old issue. It’s not like, where is this cannabis? This is new.
In fact, our view is that it should be treated the same way by employers. It’s the impairment, rather than the agent of impairment, that should be addressed. The overall way of dealing with that is through good policies and procedures, educating all employees on recognition of impairment. We don’t take a stand either way on testing. We understand concerns on both sides. Certainly you want to have some specifics in different industries. The transportation industry has a lot of rules already, as do mining, construction and other high-risk industries, around impairment and illegal drugs and alcohol.
As I say, with cannabis it’s more that there’s a fear — and possibly rightly so — that there will be more people who will think that because it’s now legal, I have free rein to smoke it, eat it and ingest it in the workplace.
So it’s really up to employers to ensure their workers understand that just because you can buy it now doesn’t mean the rules have changed in the workplace.
Mr. Hynes: I have a couple of points in terms of support documentation. In the presentation that we shared with you, on page 6 you will see statistics from Colorado. They show the change in usage in that state after marijuana was legalized for recreational purposes.
What you will see here, looking at the data, is that in all cases, Colorado went from anywhere between eighth to fourteenth highest in the U.S., to first or second in terms of the usage pattern.
I agree with my friend that Canadians and Americans are not the same, but we do contend that we should learn something from this experience. If, after recreational legalization, the usage patterns changed substantially in the U.S., the same logic, we believe, has to apply in Canada. We think the problem will be further exacerbated.
The second thing is around drugs versus alcohol. I think it’s fair to say that employers feel a bit more comfortable in the alcohol space. Alcohol has properties that make reasonable-cause testing easier, because you smell it, you see bloodshot eyes, you have slurred speech. We are used to being around people who are intoxicated by alcohol. With drugs, it’s not the same; you don’t always know. What I’ve heard from people who do testing is this: Reasonable-cause testing is often alcohol. So you suspect somebody is under the influence. You do a test. More often than not, it comes back it is alcohol. Random testing is more often than not drugs, because you can’t see it; it’s not visible.
Those are the concerns we have as employers. We do think things are going to change. Yes, there are tools in place to manage it now, but when it’s legalized we’re going to see a change that is unknown, but we think the evidence is clear.
Mr. Yussuff: I do want to say, given all this heightened awareness by employers about the world is about to come to an end, what my friend hasn’t said yet is what steps they are taking as employers with regard to the legalization of cannabis to ensure all of their employees in their workplace are fully aware that this still remains an illegal substance to use coming to work. Unless you have medical reasons for doing so, you would not be doing it.
I think it is also important that what they were not able to get the Supreme Court to do they are now trying to tell the legislators — including the senators here today — you should do it on their behalf. The reality is this is still an illegal substance to use if you’re going to work. Fundamentally nothing will change tomorrow morning or next week, whenever it becomes legal. The fact is we need to remind folks who are coming to work that just because it is not illegal and you will not have a record for purchasing it or using it does not mean you come to work in an impaired fashion.
We need to amplify that education so that workers appreciate much more, as do the supervisors who have a responsibility and role to ensure that that is the position adhered to within the workplace.
The Chair: Sorry, time is up. We have to move on.
Senator Munson: Thank you for being here. Just for the record, you talked about a split decision by the Supreme Court. Split usually means 5-4. This was 6-3, I note. In any case, just for the record.
To the two I wouldn’t say combatants, but there is certainly a different point of view taking place, as we see here this morning, Mr. Yussuff, I covered a lot of labour disputes, and at the end of the day, everybody wants a win-win, and it takes some time to reach a compromise with the employer.
I’m curious about, first of all, one thing: the criteria behind random testing. Is it because somebody in a town says he saw somebody who smokes a lot of dope, and so on and so forth, and he has that lifestyle, so you’re going to target that kind of person? How does that part work?
The other question is a bigger question. None of us wants to have the status quo, so is there a way of compromise between an employer and the union to work something out that maybe doesn’t have these words, but random testing trumps privacy? I don’t think so, but something has to be in place to work out. When you talk about legislators and the courts trying to make decisions, surely it’s incumbent upon you to work something out too.
Mr. Yussuff: We do believe there is a balanced position. The Supreme Court has laid out the three criteria they believe employers can utilize within the context of drug testing, but it can’t simply be random. Of course, employers have argued it needs to be random because that’s the only way they can have an effective regime within the workplace.
We do believe, at the end of the day, what the courts have provided is a balanced position recognizing the right to privacy and, of course, the Charter of Rights and Freedoms. I think for the most part, if an employer were to apply that based on the guidance the Supreme Court has provided, I think we would not be here arguing about whether or not we need to be doing anything. The courts have already said there are circumstances in which you can do certain things, and here is what they are, and you should take that as a guidance to proceed.
The Chair: Mr. MacDonald, if it’s okay with you, Senator Munson?
Senator Munson: Yes, of course.
Mr. MacDonald: Thanks for the question. My colleague, as much as I love him as well, makes reference to — by the way, I work for the Irving Organization, so the Irving Pulp & Paper case was our case, at the end of the day. I was there. I sat through the Supreme Court hearing and the decision.
I can tell you that although my colleague will continue to refer to that Supreme Court of Canada case as the definitive statement and say there are no other cases really addressing this issue, there are tonnes of cases, and they’re all over the map. It all depends on the arbitrator that hears the case. The TTC decisions coming out of Ontario are very different than what came out of the Supreme Court of Canada.
One of the things we would say, senator, is that this highlights the issue. We can all spend a whole lot of money arbitrating cases in every jurisdiction in the country and come out with different results depending on who the arbitrator or the judge is, or we could have, like other organizations and jurisdictions have done, legislation so that everybody understands the rules and everybody plays by the same rules.
We’re in favour of that. It isn’t as straightforward as it may seem from one Supreme Court of Canada case.
To go to your question about random testing, how it works is actually it’s a computer program. It’s truly random. Names are put into a computer program. Say it’s 100 people and you’re testing at a 10 per cent level. It will pull out 10 names and those individuals are tested.
If you’re testing on a monthly basis, the 100 go back in, you can be chosen three times in a row or be not chosen at all. Just so you understand, that’s how random testing generally works. It’s truly random.
Mr. Yussuff: Just for the record, the TTC case is still an interim decision. It’s still proceeding through the system. It’s not yet resolved.
The Chair: Can I clarify one thing? In the TTC situation, the Toronto Transit Commission, was that imposed by management or was it an agreement with the union?
Mr. Yussuff: It was imposed by management.
The Chair: Okay. Moving on.
Senator Omidvar: Thank you very much. I would first like to comment on this deck, either FETCO or the energy group — I’m not quite sure who handed this out, the statistics from the Rocky Mountain High Intensity Drug Trafficking Area.
Just to restate, the evidence drawn from different sources tells you different things. I will cite the National Survey on Drug Use and Health in the United States, which is universally agreed to be the most authoritative source. It found that in Colorado, cannabis use monthly from ages 12 to 17 has dropped from 11 per cent to 9 per cent. It’s just to let you all know we are coping with a great degree of evidence, and nothing seems to line up.
Having said that, my question is to the people from industry and Mr. Yussuff. You already have practices and policies in place to ensure that when people get on the airplane, in the truck or on the train, they are not impaired. You already have these policies.
In spite of everything we may hear, I think we’re fairly confident that we are in safe hands when we board a plane, outside of random situations. I don’t believe that substance abuse is going to go from zero in the workplace to an overload, because you already have policies and practices.
So perhaps you could tell me, the people from FETCO first, if those policies and approaches work in keeping us safe. Let’s not go to the legislative fixes you have proposed, but the current policies and practices. Do they work? What are they?
Mr. Yussuff, from your point of view as well, do these current policies and practices work in keeping us safe?
The Chair: We’ll start with Mr. Hynes or Mr. MacDonald.
Mr. Hynes: Yes, I don’t want to sit here today and be perceived to be fear mongering. Employers, as do our union friends, take workplace safety very seriously. It’s very important, and it is an issue on which employers have numerous policies in place.
Most larger employers have policies relating to the use of alcohol and drugs in the workplace. I would say a couple of concerns, and we’ve raised them already. One is there isn’t really a clear understanding of what the rules are. I have to disagree with my friend; I don’t think the Supreme Court really sorted this all out for us. That’s one issue.
The second issue is we do think there’s going to be a change in behaviour. I think the government acknowledged this when they introduced Bill C-46. When the government introduced Bill C-45, it brought in the companion bill, Bill C-46, and greatly enhanced law enforcement officials’ ability to manage impairment on the roadside. It has to be rooted in some assumption. I can only presume that assumption is that use is going to increase. We need greater tools for our law enforcement officials to manage it. We think the same logic applies in the workplace.
Mr. Yussuff: We’ve got a fairly robust health and safety regime throughout this country, and unions and employers work very diligently. As a matter of fact, in a couple of days, April 28, we will be acknowledging that this is a national day in which we take time to reflect on those who have been injured or killed on the job throughout this country. The reality is I can say we have a good regime. Certainly at the federal level we have worked very hard to ensure the regimes we have actually are effective and thus provide a safe workplace for employees.
I do not share the view — I say this with all due respect — that my colleagues on the employer side have been cheerleading, that people are going to increase and more importantly abuse their relationship in coming to work impaired because recreational cannabis will become legal. I don’t share that view.
I think yes, some of us will go out and if you haven’t tried a joint yet, you may want to go out and find out whether it actually is what is talked about. At some point you will realize, “I can go and have a drink equally as well as cannabis,” and for some people, it’s substances they take.
The reality is I think we have a good regime in this country. I think it’s going to require, though, a continued education of the workforce. Employers have an important role in that, as do unions and workers, to ensure that nothing has changed: You cannot come to work in an impaired fashion and think that somehow because it’s now a legal substance it will allow you to be there and perform your duties.
With regard to my friend talking about the legislation regarding people driving, law enforcement officers have to have probable cause to stop somebody and administer a test. That’s the fundamental difference in regard to the law. We don’t give up our privacy rights or our constitutional rights because the government is going to make legislation that’s going to take criminal records from so many people who got them because they were just smoking a joint. I think we need to put it in some perspective.
I would urge you as senators to recommend in your deliberations that the government should provide some provisions for the parties to heighten the education that’s going to be required for workplaces in the federal jurisdiction and encourage their provincial and territorial counterparts to do the same thing.
Senator Bernard: Thank you all for being here and for your testimony. Some of the questions I wanted to ask have been asked, so I’m going to drill down a bit more with them.
One is around the whole question of random testing. In many of your responses, the focus seemed to be more on drug use rather than drug impairment. Mr. Moore, in response to a question, you talked about that specifically. I wonder if you could say a bit more about that. A lot of the discussion seems to be around drug use and not around drug impairment. Why is that?
Mr. Moore: Again, very good question. As I’ve said, the position of my organization is that the concern is about employees being able to do their work safely, and that comes back to impairment.
From all of the research we have done, public sources and research that is available, we understand that testing is a bit of a moot point. Well, we take it as a bit of a moot point, because it’s not whether you have THC in your system; it’s whether you are capable of doing your job safely.
So overall, it’s not like there’s a one-size test fits all, because as has been discussed, alcohol is reasonably clear cut; cannabis is not. There’s nothing around, as one of my colleagues mentioned, Tylenol 3s or over the counter cough medicine with codeine, things like that, all of which are agents that impair and are of equal importance with regard to safety in the workplace. So from our point of view, we focus on the impairment aspect as opposed to the use aspect.
Now, there are really three categories, I would say, of users of cannabis. There is the casual, once in a while, someone offered it to me at a party last weekend and I tried it for the first time. There are medical marijuana users, and it has been discussed previously that medical marijuana use is recognized as something that employers are obligated to accommodate. So if someone is in a safety-sensitive position and they take medical marijuana, it has to be determined whether they are impaired. The third is chronic — I want to use the right terminology here, but substance dependent. They are also a category of people that employers are required to accommodate. Substance dependence is legally considered a disability, and therefore it must be accommodated by the employer.
There are various aspects to the use of drugs. Some casual user who gets randomly tested and he’s used it once in his life at a party on the weekend and he shows up as positive. Then there are the other aspects of a chronic user who may in testing two or three months after he or she last smoked a joint show as having had some THC in their system. As I say, there are those. Then there are the medical users and the ones for whom it is a dependence. They’ll be treated somewhat differently.
The underlying issue, from our point of view, in the workplace is this: Is the person showing up at work in a safety-sensitive position able to do that job that day?
The umbrella way of looking at that is through policies and procedures, education, making sure everyone is trained on recognizing impairment and being on the lookout for it, as much as employees are trained to be on the lookout for other safety hazards.
Senator Bernard: Do I have any time left?
The Chair: You have half a minute. Quick question.
Senator Bernard: I’ll go on the second round, then, please.
The Chair: Are we down to the second round? We are. Since round one is over, I will insert a question here.
I’ll give it to Mr. Moore. We’ve heard the differing opinions between employee representatives and employer representatives. We’ve also heard they’re great friends of each other. So I wonder, why can’t employers and employees get together and work out a protocol, work out policies, without the government having to now interfere by legislation or regulation? What is the view of your organization on that, Mr. Moore?
Mr. Moore: Well, as I mentioned, we don’t take a position on testing per se. We see both sides. We are also a tripartite organization in the sense that one of our governors is at the table. So we have a very balanced government-employer-labour view on things.
We try and look at it from the point of view of what is going to keep the worker safe and what is going to help the employer to provide a safe and healthy workplace?
From our research into all of the research that’s been done publicly — we’re not testing people or anything like that, we’re a tertiary institution — our take on it is that because testing is uncertain at this point and because impairment can be caused by many sources, the best way of ensuring that the workers are safe and the employer is making best efforts and doing due diligence to ensure a safe workplace is through good policies and procedures, education and training on impairment.
All of that is already if not directly in some province’s legislation, indirectly in all of the occupational health and safety legislation, in that the employer is required to ensure that there is a safe and healthy working environment. Some of them specifically say no drugs or alcohol and some don’t, but they are still covered by that general duty to provide a safe and healthy working environment. I guess what I’m saying is that my organization does not see the specific need for additional regulations in that area, but rather more for making sure that there are good policies and procedures and education.
Senator Seidman: Actually, it’s interesting, because I was going to pursue this legislative obligation that an employer has. It was you, Mr. Elliott, who spoke to this in your presentation. You said that oil and gas employers have significant legislative obligations to ensure the safety of their workers, including maintaining a safe work environment. You said the Criminal Code imposes a duty on employers to ensure a safe workplace. You went on to say that you’re worried that those obligations are going to become more difficult to fulfill with the legalization of recreational marijuana.
What I would like to hear from you, and then perhaps I could hear from Mr. Hynes, is about the challenges your specific industry faces in policing impairment on the job site. Could you elaborate on that for me, please?
Mr. Elliott: It’s a really good question, senator. So the challenge with policing is that we have a number of different tools to try to manage it, including education. In trying to have people who can identify impairment, supervisors and workers are trained to know and understand that impairment. We then have a background of tools that everyone can put in place, including pre-employment testing, for-cause testing and post-incident testing, and our model has random testing in it. That is with a broad collaboration, including labour as part of it.
It’s up to each employer when they decide to use those things. But out in the field, it’s about the awareness of people and it’s about actually testing. We know the science isn’t perfect on testing; you need to go in with a risk basis on this. You need to have some criteria. The criteria are laid out in the model we have for every substance, whether it’s legal or illegal, based on a risk basis to say that above a certain level there is a high potential that this person is impaired. The science is never going to be perfect on this — not for a long, long time. Even for alcohol after all these years it’s not a perfect test, but there is a reasonable probability that above a certain level someone is impaired. Those are the kinds of tools we have. We ban alcohol or drugs of any kind, illegal ones, on all of our work sites. We do everything, even using drug dogs to ensure that vehicles and equipment brought to sites aren’t bringing in illicit substances.A lot of energy is put into this to try to make sure that we’re protecting people and the public from risk.
Senator Seidman: You’re concerned it’s going to become more difficult to fulfill your obligations as an employer?
Mr. Elliott: This is really exposing a gap that already exists, and it’s making it potentially larger. That is the real risk.
Mr. Hynes: I’m going to defer to Mr. MacDonald to give the specifics in terms of the workplace. To set that up, the Canada Labour Code Part II is what speaks, in the federal sector, to health and safety in the workplace. Associated with that are the Canadian Occupational Health and Safety Regulations, which are some 250 pages long. In that case, the government is the regulator around safety. We have a responsibility as employers to comply with the act and the regulations.
The regulations are very specific. They speak to what kind of first aid training is needed, where the fire extinguisher needs to be in the room, those sorts of things. But they have nothing on this issue. That is a huge gap. Chris can speak specifically to how that looks and unfolds in the workplace.
Mr. MacDonald: Senator, it’s a good question. As an employer, as in many things, there is a weighing of interests. On this particular issue, whether you’re provincially or federally regulated, you’re dealing with an occupational health and safety act and the obligation to provide a safe work environment, where the obligation rests on the employer. On the flip side, we’re dealing with the Human Rights Act. So you are sometimes wedged in between those in the duty to accommodate, and we take those seriously. We’re always challenged to provide a safe work environment. That is our duty at the end of the day.
The concern is it becomes harder as increased use happens. Once again, the point was made that alcohol is easier to detect. Drugs are more difficult, and the concern is — and I have to deal with this point because I’ve been trying to get to this point for a while — we have heard a lot about education, and that’s great. We do lots of education. There is no question folks understand we have clear policies on this issue at the end of the day. But if education was the be-all and end-all, then why did 43 pilots in India test positive in random alcohol tests? Why did 10 in the United States test positive? There are people, as much as they are educated, who are not going to abide by the rules. It’s that simple.
What this does is it puts checks and balances in place. I have to disagree with Mr. Moore that, okay, more education — we agree with more education, but it’s a suite. We ask people to voluntarily come forward. We give them opportunities for education. It could be a confidential assessment. We do all of that stuff, but things still happen. There should be zero results if education is the be-all and end-all, but it’s not. That’s why we need testing.
Senator Petitclerc: I will continue on education.
Mr. MacDonald: I said my piece.
Senator Petitclerc: I haven’t found this answer anywhere because, obviously, we did talk a lot about education. In this committee specifically we often hear about how impactful education is and how we get results in many social situations or behaviours with education. The one thing I cannot find the answer to is when I look at the government investment, and what has already been committed in terms of awareness and education, I see mental health, I see youth, I see research; but I haven’t found anything that is dedicated to health and safety, workplaces and employers. Maybe it does exist and I haven’t seen it.
Mr. Moore, do you have that answer? If you have not been targeted with this funding, do you believe that you should be?
Mr. Moore: There are plenty of government programs around health and safety education and training. To use my own organization as an example, that is a large part of our mandate — education and information. We receive roughly half of our funding from the federal government. So in general terms, we are provided funding to provide education and training on workplace safety, but nothing specific on impairment or cannabis. Typically when a major legislative change happens that is going to have a profound impact in the workplace, some major program will be developed. As I mentioned before, with the Workplace Hazardous Materials Information System, WHMIS, there was a big change in the way hazardous chemicals are identified and how workers need to be trained and that sort of thing that happened in 2015. There were years of build up to it. CCOHS, my organization, worked with Health Canada, and we received funding from Health Canada to develop programs for workplaces.
So far I have not heard of anything like that around cannabis or impairment. Yes, there are lots of initiatives around mental health, violence, youth awareness, all of these sorts of things, but I have not heard of anything around impairment.
Senator Petitclerc: Mr. Yussuff?
Mr. Yussuff: I think the point you are raising is a very specific one. I think in not committing additional resources, whether it’s through the CCOHS as a tripartite agency, the government has omitted to do more work in this particular area. I think it is necessary. In all due respect, while we may see it as a continuum of the ongoing effort around prevention, I think there is a heightened awareness that something new is about to happen, and people need to understand the complexity but also the legality in regard to what the workplace will allow.
Senator Petitclerc: Thank you.
Senator Raine: Thank you very much. Perhaps just continuing a little bit on from Senator Petitclerc’s line of thinking. We have heard today a lot about big industry, big business, but I’m concerned about what happens in the small businesses and in even private businesses, because there are also huge issues if somebody is tasked with tightening the bolts on my car and I drive down the highway and my wheel falls off. Where does responsibility lie?
I’m not sure who should answer this. Perhaps I would like to get a little input from Mr. Elliott, because if you think of pipelines — I’m thinking about that a lot these days — you need to be very, very sure that what you’re doing in terms of building that pipeline and welding it, it’s not necessarily hazardous to your health, but to environmental things down the way.
What are the obligations for an employer and what are his rights? How can he, if he suspects — and he is just a little businessman — he no longer trusts his employer to do the job to his level of confidence, what are his rights? How do you deal with that on a very small business basis?
Mr. Elliott: Thanks for the question, senator. In the work we do as the energy safety organization for the oil and gas industry, we support organizations of all sizes, right down to single-individual organizations or small employers, 20 people, up to thousands of employees.
A lot of the tools that we develop we develop jointly with many different players, so we do have a Canadian model for alcohol and drugs. Any size employer can pick that up and it gives them exactly what to do and how to do it. All they need to do is customize it for what they have as their particular organization and how they want to deal with it.
So there are tools out there. Their legal obligation as an employer is the same as any size organization. They are dealing with that now, whether it’s illegal substances or legal substances. They need to have the right tools in place to make sure they can manage the risk. This is an opportunity for everyone to kind of reset, relook at what they are doing and make sure they are educating their employees that while impairment is never going to be acceptable, it will not be acceptable in the future just because cannabis becomes legal.
Senator Raine: Even if somebody isn’t a member of your organization, a small business person running a garage, for instance, could have access to your tool kit as a starting point?
Mr. Elliott: The particular alcohol and drug model created jointly with the Construction Owners Association of Alberta is publicly available on either of one our websites for people to pick up. We are just about to release an updated one just in advance of this legislation.
Senator Raine: I wonder if you could provide a link to that updated one to our clerk so that we can help to promote that. Thank you very much.
Senator Omidvar: I want to be very brief in my questions. I would like the witnesses to be brief in their answers so we can get to more questions.
Before I do that, I just want to clarify the question around the issue of theft at Canada Post. Canada Post delivers cannabis to 200,000 medical users across the country. There have been no issues on that front.
My question is to Mr. Yussuff. FETCO has stated that the government should delay the legalization of marijuana until experts agree on a legislated standard marijuana impairment test. What is your position on delay?
Mr. Yussuff: I don’t support the government delaying its decision. I think this issue has been one of the last election and certainly was raised with the political parties campaigning to govern this country. It has been debated in Parliament. It’s now before the Senate. I don’t think anything has changed. I think Canadians want us to get on with the legislation to make this substance legal for recreational use.
Yes, there will be evolution of legislation in this country, and where I think there is a gap of course we’ll deal with it. We don’t believe there is a gap within the health and safety regime at the federal level.
Mr. Hynes: I just want to correct the record there. The submission that we made to the task force was almost two years ago. We were at the very early stages of discussing the legalization of marijuana.
Our position, as I articulated today, is that we have full acceptance that the legalization of marijuana is coming. What we would like to see is amendments to the bill that acknowledge the concerns that we have raised.
Senator Omidvar: Quick question, Mr. Hynes. You have a whole bunch of employer members. Did your consultation reach down to your workers as well?
Mr. Hynes: No. The consultations we have done are with the employer side members of our organization.
Senator Omidvar: Mr. Hynes, again, you said one has to weigh many issues when developing a position paper like yours. You have recommended delaying legislation. Am I hearing you say you no longer support delaying legislation?
Mr. Hynes: I’m saying there is full awareness in the employer community that legislation is coming. If it were delayed to allow some of these things to be addressed, we would not be opposed to that. It’s not a hill we’re dying on. We recognize legalization is coming, but we would like to see amendments proposed to the bill to accommodate the concerns we have raised.
Senator Omidvar: You are not sticking on the delaying point. Am I hearing you say that correctly?
Mr. Hynes: Yes, you are hearing me say that.
Senator Omidvar: Thank you.
[Translation]
Senator Mégie: I don’t know who will be able to answer my next question. I understand that the employer of an individual who consumes medical marijuana can try to find a way to transfer them to a less dangerous or risky position, given that the tests are somewhat unreliable.
Let’s take the example of someone who has reached the stage of consuming medical marijuana — therefore, someone who already has a health problem that makes them less suitable for some positions — and let’s suppose that their employer, out of compassion or respect for their privacy, allows them to continue working. In this case, the employee might have marijuana in their system, but, because the tests are not reliable, they can’t know if the employee is fit to perform their duty.
This concerns me. Does it not concern you?
[English]
Mr. Moore: People take medical marijuana for a number of reasons. Those reasons may be things like chronic pain, for example, which, when managed, allows a person to perform their duties well. If they were not taking the medical marijuana, there could be situations where their medical condition distracts them and they are not able to work safely.
In terms of someone who takes medical marijuana, first there needs to be a discussion between the employer and the employee about how this is going to work.
An employer can still say that we have zero tolerance for cannabis in the workplace. If there is testing, and you test positive, you cannot do this position. But it should start with a conversation and an attempt at coming to a mutually agreeable accommodation. For example, a person who takes medical marijuana needs to have a bit at night to help them sleep because they have chronic pain, but by morning there is no impairment. Another aspect to it is some medical marijuana is higher in CBD, which is the medicinal chemical, and lower in THC, which is the impairing chemical, so it’s a very complicated thing.
I would say it starts with a conversation, and if the medical marijuana user discloses to the employer that they are doing this, they need to try and find a way that will work for both the employer and the employee. It may or may not be easy.
Senator Bernard: I want to go back to a comment, Mr. MacDonald, that you made earlier in response to one of my colleagues’ questions. I want to talk about this whole notion of random testing and how random is it.
One of the things I have had in mind is that we know about racial profiling and other types of profiling tied to this notion of randomness. You lay out very clearly how random testing is done. I appreciated hearing that. I’m wondering, is that across the board? Is everyone doing random testing in that way? Is there the possibility that some profiling might happen?
Mr. MacDonald: Thanks for the question. I’m not an expert on random testing per se. I’m familiar with it because our organization has been doing it since 1995. There are established protocols and software programs that really do this. What I’m familiar with, and I know that most of the companies I have talked to would be in a similar situation, is that it’s really computer generated.
Certainly in our organization, some senior folks have come up time and time again. They start to question why they are coming up. But it’s really random. The names go back in. You can get picked three times in a row. That’s our experience with the specific computer programs. I understand companies that I’m familiar with use a similar type, so there is no racial profiling. There is no anything else that goes into it. It’s just simply computer generated.
Senator Bernard: Is that the case throughout the industry?
Mr. MacDonald: As far as I know, but I can’t speak for all industry.
Mr. Elliott: In my previous employment, I was with a major international oil and gas company that worked across many different jurisdictions. So I have worked a number of times in the U.S. and in the places where those were in place. They were all computer generated usually by someone pulling it off the computer in the back room who didn’t even know any of the people that were involved. It’s all very random in the ones that I’ve been exposed to.
Senator Bernard: A lot of the industries you’re talking about are people who may be sleep deprived because of the nature of their work. Is that taken into account in your education programs and the plans and development of policy and so on around testing?
Mr. Moore: I’m glad you raised that, senator, because that is one of the things that we emphasize — I hesitate to say harp on — the fact that impairment comes from many causes. When we are doing presentations to industry groups about impairment programs and policies, we’ll say things like there is cannabis, there are over-the-counter medications, there is alcohol, you have a new baby at home and you haven’t been sleeping. There are many reasons why you might be impaired. That’s why we suggest focusing on the policies and procedures for identification of impairment and what to do when someone is suspected of being impaired.
Mr. Yussuff: Sleep deprivation also comes from working long hours. In certain particular sectors, because of the nature of the work, railway and other sectors, people do work long hours. In some cases the shifts are 12 hours or more. It depends on one’s body’s adaptation. You might be affected very differently versus somebody who has more stamina and ability to deal with sleep deprivation.
Mr. Elliott: Senator Bernard, you made a really good comment about that. Our oil and gas industry is starting to focus on overall fit for duty. It’s not just about drugs and alcohol. This is about being physically, psychologically ready to work in all ways, shapes and forms. So people can have psychological problems or stress-related issues as much as sleep deprivation or anything else. We’re looking holistically at the individual. Are they ready and fit for duty?
The Chair: Mr. MacDonald?
Mr. MacDonald: I know you’re trying to wrap up, but I think you raise a great point. We mentioned the Nuclear Safety Commission, which has introduced fitness-for-duty regulations. There they have gone ahead with a whole suite of testing, including random. Once again, to your point about it being about fitness for duty, we manage the whole suite as best we can, but I wanted to highlight the fact that the Nuclear Safety Commission has actually got regulations that are entitled that exactly.
The Chair: That brings us to the end of the meeting. Witnesses, panellists, you have given us great information. You have shown considerable knowledge and articulation of your positions. It was well received by my colleagues and me. Thank you very much for all of that.
Members of the committee, we will be back Monday at 2 p.m. We have about four hours of hearings on Monday, so have a good rest of the week and weekend.
(The committee adjourned.)