Testing For Weed Impairment At Work - W-Day Approaches

I’ve written previously on the topic of the approaching W-Day (Weed-Day, October 17, 2018, when cannabis sale and consumption becomes “legal” across Canada) and about what employers can expect. As I’ve stated, I can’t decide whether something truly disruptive for workplaces is about to occur or, at the other end of the spectrum, nothing at all will happen.

Will the sky fall on October 17th (or soon thereafter)? Maybe, but probably not, especially if employers have prepared themselves.

The Status Quo

It’s worth remembering that people already use marijuana in a variety of ways. And, of course, there are many folks who have some version of a medical marijuana prescription.

So, marijuana use is already out there – it isn’t going to abruptly fire up on October 17th. That means that some members of your workforce are already using marijuana. Which means that the problem you’re foreseeing come October already exists. Not, perhaps, a comforting thought.

There are all kinds of other intoxicants out there, too, from alcohol to various other illegal substances. People are ingesting those things, right now. Those people work at your company. Also not so comforting a thought.

And, of course, all kinds of people consume prescription and over-the-counter narcotics and medications every day. Very, very few employers monitor employees’ use of such medications (I can’t recall a single instance of one of my clients informing me that it does so). Very few employers know who is using them, which ones are being used, and whether they are producing any kind of impairment. Are you truly uncomfortable, yet?

My point is that people already have access to, and are making use of, all kinds of substances which can produce impairment in the workplace. The “problem” (if it is a problem) already exists. If it hasn’t caused enormous issues in your workplace just yet, it may well be that October will come and go without any noticeable impact.

Testing for Impairment In The Workplace

Without a doubt, having impaired people in the workplace is problematic. Depending on the setting and the extent of impairment, it can range from being simply annoying and unproductive to being downright dangerous.

But, as mentioned above, people have access to all sorts of impairment-producing substances right now. And, generally speaking, they don’t seem to come to work in an impaired state (in my experience, anyway). So, unless people are suddenly going to start thinking that Justin Trudeau has made it okay to show up at work in a state of impairment (I’m not sure that’s his objective), I don’t really anticipate a wave of incidents.

Having said that, and all joking aside, workplace impairment is an issue and in any sort of a safety-sensitive setting can be extremely dangerous for the impaired employee, for his/her co-workers, and for the general public. Employers should be considering implementing policies addressing impairment in the workplace. I’ve discussed those policies, previously, and a previous bulletin on that topic is located on my website.

Testing for Impairment

As I’ve stated previously, there is no present technology by which an individual’s state of impairment by use of marijuana can be measured. Cannabis is unlike alcohol in that there is no linear relationship between the amount present in a person’s system and that individual’s resulting state of impairment.

That’s a problem, both for employers and for law enforcement agencies. It means there is no device in existence which will tell police officers or employers if an individual is presently impaired. The presence of the related chemicals in the body can be detected, but the degree or extent of impairment cannot be determined by technology.

Does it seem that I’m I repeating the words “impair” and “impairment”? Probably. Because that’s all that matters. It really doesn’t matter one whit that there is a trace of alcohol or THC (or anything else) in a person’s system if that person is not impaired. Impairment, and detection of impairment, is the issue for employers.

There is perhaps some confusion on the detection of impairment topic because you may have seen media reports about a device (the Drager Drug Test 5000) which will be relied upon by some (but not all) Canadian police forces. You may think this device is the equivalent of so-called “breathalyzers” used by police to detect alcohol impairment, but it’s not.

As a side note, it always bolsters my confidence to see a big number such as “5000” in the model name. Really, who wouldn’t prefer the “5000” to, say, the “3000” or the “299” or the “1.7”? Seeing “5000” makes me confident that this is a really, really, super-duper piece of equipment. Except that it doesn’t work in temperatures below 4 degrees celcius. And, oh yeah, it doesn’t measure impairment. Or tell you precisely when the person consumed the marijuana.

That aside, the Drager has been adopted by the federal government as the initial saliva screening device to be used by law enforcement to test for THC (the main psychoactive agent in cannabis). This device will detect the presence of THC in a person’s system.

It won’t measure impairment and so cannot possibly stand alone as evidence of a person driving or attending work while impaired. People who regularly use marijuana will almost certainly test positive for the residual presence of THC in their system. That’s a problem, because it will suggest guilt on the question of impairment without in any way proving impairment.

For now, police forces and employers have available to them the techniques of standardized field sobriety testing to detect signs of impairment.

Employers in safety-sensitive settings should consider obtaining that training for their supervisory staff so that credible, on-the-spot assessments of impairment can be made. Without that evidence, the results of a “5000” level saliva test may not be worth a whole lot.



This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.

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