“Legalization of cannabis has many employers asking us, ‘Can we now do random drug testing?’” says Howden, a partner with Shibley Righton LLP. “The short answer is still no, for various reasons.”

Howden tells AdvocateDaily.com that there are “very few circumstances” where drug testing employees would be considered acceptable to the courts and Human Rights Tribunals.

“The reason for that is the concern over privacy — that’s a big piece— but also whether the methods for testing give us accurate results for impairment,” she says.

“The problem with cannabis is that it stays in your system much longer than alcohol,” says Howden. “Employers have reached out to ask us to draft policies on cannabis in the workplace, and what we recommend is that they focus on fitness-for-work issues instead.”

Drug testing will indicate that a person has cannabis in their system, but it won’t tell you if the worker is actually impaired, she says.

“In addition, there are legal limits for impairment with alcohol, but it doesn’t mean you’re actually impaired. Our tribunals prefer objective evidence of impairment,” says Howden.

That means if an employer thinks that someone in a safety-sensitive position might be consuming cannabis at work, it needs to think about ways to objectively assess impairment in the workplace, she says.

“Does the person have red eyes or delayed reaction time? Are they exhibiting poor memory or muscle coordination? Those objective indicia of impairment are preferable because they actually tell you that someone may be impaired as opposed to merely having drugs in their system,” says Howden.

However, if you have an extremely hazardous workplace — such as the operation of vehicles — and there’s a reasonable suspicion of an impairment problem and a serious concern for safety, an employer may be able to introduce random drug testing, she explains.

Employers have a statutory obligation under the Occupational Health and Safety Act to keep workers safe from hazards — including those resulting from impairment, she says.

“The problem is, drug testing is not the means that our courts tend to allow,” says Howden.

“The beauty of a fitness-for-work policy is that it covers not only cannabis but alcohol and other drugs — legal or illegal— as well as fatigue,” she says.

A fitness-for-work policy confirms the employee must come to work fit to discharge duties and not be impaired, Howden says. Such policies also typically require employees to reveal any disability that requires accommodation.

“To the extent an employee is not fit for work, that is subject to corrective action and accommodation up to the point of undue hardship under the Human Rights Code,” she says.

“Accommodating doesn’t mean you let them come to work impaired. It means if you suspect or they reveal a drug or alcohol dependence, you have to support those workers in dealing with that addiction by providing reasonable supports and time off work to get treatment,” says Howden.