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GEORGE: The liberty and liability of employee drug testing

March 20, 2018 - 12:25 PM

 


OPINION


Once again the federal government finds itself investigating the possibility of bringing forward legislation to test workers for drug use if their impairment would jeopardize public safety. It has come up in conjunction with the introduction of legal cannabis. I know that testing for cannabis impairment is going to be a problem. I also think the government should not bring in legislation to allow random testing for cannabis.

Don't get me wrong. Impaired driving is a crime deserving of punishment. Does it matter whether you are driving your personal vehicle or a company rig? What if you are a bus driver or an airline pilot? Shouldn't we care whether or not these individuals are using drugs and alcohol in their workplace?

We should care. But the group that should care more are their employers. They are the ones who could face significant liability for the actions of their employees. The crime will be punished by the state. But the liability for the actions of employees is a purely civil matter. As it stands, legislation to allow drug testing would enable employers to lessen their liability in the event an employee's impairment causes an accident. The company could plead that it had done all it could to keep such behaviour out of their workplace. But this does nothing to improve the accountability of employers or the safety of workplaces.

Supervision of a business is difficult. If an employee is coming to work on a regular basis under the influence, would not an employer who was paying attention notice? If a stoned or drunk worker was doing his or her job to the best of their ability, would their output match their performance when they weren't impaired? No chance. An employer who was paying attention would notice.

Now I realize that "paying attention" is difficult and can cost money. And certain jobs, like airline pilot, don't lend themselves to close supervision. But the majority of Canadians who would find themselves suddenly presented with a cup to pee in aren't airline pilots. Or even bus drivers.

This legislation represents the thin end of the wedge and passing it would put us on a slippery slope. The thorny issue of measuring cannabis impairment illuminates this subject perfectly. Unlike alcohol, it is impossible to measure the degree of impairment from cannabis with any degree of certainty. Individual responses to the same quantity of THC per milligram of blood vary widely. THC breaks down relatively quickly compared to alcohol, yet the metabolites of THC can remain in a person's system for several weeks after smoking or ingestion.

Quantifying cannabis impairment based on an objective measure would seem to be out of reach for now. But that isn't going to stop the government from trying. We will likely attempt to use the model we developed to deal with alcohol impairment. It won't work, but they'll still try. Common sense seems to demand that something be done. Voters will demand it and politicians will deliver.

It is the same with drug testing in the workplace when cannabis is the target. Something must be done, right?

Then there is the cost. The ACLU in the U.S. estimates it cost $77,000 (1999) to find one drug user in their federal government's drug testing program. Like the drug testing for welfare recipients they tried to roll with in Florida, the costs far outweighed any benefits. But it sure felt good for those proponents of the idea. As much as we would like to think that drug testing reduces drug use and accidents in the workplace, the jury is still out on that.

It is important that we keep the idea of personal liberty in front of us. Canada slipped out of the top ten "freest countries" last year. I don't think we should risk next year's ranking over legislation that won't do much for public safety. People need to be held accountable for their actions. Allowing random testing for cannabis impairment isn't going to do anything for that. If employers are free to test, employers are free to use the results to make decisions about the person's future employment. This is exactly what employers can do now, by law, using observation.

What it really boils down to is respecting the personal liberty of Canadians while demanding personal responsibility from both employees and employers. Employees need to not come to work impaired and if they do they need to be prepared for the consequences. Employers need to pay attention to their employees in their workplace. We should make the penalties for impairment where people's lives are in danger commensurate with the risk. With cannabis, I don't think we will be able to properly evaluate that risk and so we shouldn't get all fired up to punish people for something we can't really nail down.

— Chris George believes one measure of a just society is found in how well it balances fiscally conservative economics with social responsibility and environmental soundness in all of its living arrangements.

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