DRUG TESTING: PRE-EMPLOYMENT OFFER, POST-EMPLOYMENT
OFFER AND DURING EMPLOYMENT
ONLY ONE VALID BASIS FOR TESTING
It remains the case that the primary and only truly valid reason
for conducting workplace drug and alcohol testing is to measure
impairment at the time that the test is administered.
It continues to be the case that drug and alcohol testing that has
no demonstrated relationship to job safety and performance, or
where there has been no evidence of an enhanced safety risk in the
workplace, violates employees’ privacy and human rights.
In the case of testing for marijuana impairment, employers face
further and currently unresolved challenges. Why is this?
■■ Unlike alcohol, there is no clear consensus on what constitutes
or clearly indicates marijuana impairment, how employers are
to gauge impairment or how much marijuana is too much.
Marijuana can be taken in various forms and doses, with or
without other intoxicants, meaning that the level of impairment
can fall across a broad spectrum that can also be influenced
by other factors such as whether the employee is a habitual
or infrequent user. Moreover, the mere presence of THC, the
active ingredient of marijuana, does not with any certainty
■■ Currently there is no reliable method for objectively assessing
or testing for impairment. Therefore, proving impairment of
an individual at the time of testing poses one of the greatest
challenges in the crafting and applying discipline under
workplace policies concerning marijuana use. This means
that employers’ ability to implement discipline for marijuana
use without proven intoxication is fraught with problems
■■ Added to all of this is the difficulty that having recently used
marijuana is a very different legal matter from actually being
impaired at work and unable to perform the essential duties of
the job in a safe or productive manner. The real question to be
answered when conducting such testing is whether the employee
is impaired to such a degree that the employee is unable to safely
perform the essential duties of their job?
RULES FOR TESTING
Pre-employment testing or screening of applicants for drug or
alcohol use or impairment as a general rule is prohibited. This has
not, and likely will not change except as is being contemplated by
the federal government in relation to safety-sensitive positions
After hiring and during the employment relationship there
are some exceptions to employees’ right to privacy in conducting
workplace drug testing to test or monitor for marijuana use. In this
context, the general rules of engagement are: 1) The right to use
marijuana will never override the right to maintain a safe work-place;
and 2) Random testing for any kind of impairment during
employment is prohibited except on a case-by-case basis where
reasonable cause is established.
WHEN IS REASONABLE CAUSE ESTABLISHED?
Currently there are a limited number of fact-specific circum-stances
where employers can require drug testing to demonstrate
an employee’s ability to do their job safely. These are:
■■ Where there is a health and safety concern and the employee
works in a safety-sensitive position in a dangerous work
environment or at a job where the inherent consequences of a
workplace accident or mistake could cause grave harm. In such
circumstances, an employer may also need to show evidence
that there is a problem with drugs or alcohol addiction in the
particular workplace to justify random or other types of testing.
In others it may be prescribed by legislation (e.g. airline pilots).
Impairment at the time of testing is difficult to prove since
the mere presence of THC does not with any certainty
cozyta / 123RD Stock Photo
32 ❚ OCTOBER 2018 ❚ HR PROFESSIONAL