Tom Yearwood, LLB Denning Health Group

1. 2018 WFCA CONFERENCEKELOWNA BC – COAST CAPRI HOTELThe Impact of Legalization in Canada and Recent Case Law Tom Yearwood, LLB Denning Health Group

2. Introduction • Wildland firefighter in BC and Alberta • Truck driver (Class 1 with air-ticket) • Business school • Law school • Breath Alcohol Technician • Working in the area of policy development for over 20 years. • Forestry clients include Interfor, Domtar, Western, TimberWest, Island Timberlands and hundreds of contractors.

3. Presentation Objectives • Drug and alcohol testing program overview: • Why do drug & alcohol testing? • Legal duty to act • Expectations • Testing scenarios • Recent case law – duty to disclose • Legalization of Marijuana • Q & A

4. Background Evidence of use and abuse. Indications that drugs and/or alcohol were causal factors in accidents/incidents in the industry. Recent stats: 25% positive rate in PI testing

5. Types of drugs being used: actual statistics from a major forestry entity.

6. Policy Overview Substance Use and Impairment • Improve Health and Safety • Becoming a standard practice throughout the industry • Early intervention for those that need help

7. Expectations • Workers are required to be Fit for Duty at all times while at work. • Must be free from the adverse effects of alcohol or drug use, including prescription or over the counter meds. • Medical marijuana and the impending legalization does not change safety implications. Alcohol and other prescription meds are legal but this is NOT the issue.

8. Prohibited Conduct: (See your company policy for details) • Testing positive for drugs or alcohol. • Alcohol levels above 0.039 = impairment. (Alcohol levels 0.02 – 0.04 will be removed from duty until safe to return.) • Refusal to test • Trying to cheat the test. • Delaying the testing process. • Threatening or bribing the collector. ● Consuming or possessing alcohol or drugs while on duty or on work breaks.

9. Consequences of Prohibited Conduct: • A positive drug or alcohol test may not automatically result in termination (TBD). • Each case will be investigated and assessed on its own merits. • May be referred to a Substance Abuse Professional to determine any underlying problem. • Disciplinary action may apply. • Drinking or drugging on the job? What is your approach?

10. Consequences of Prohibited Conduct: • Prior to returning to work, the Employee may have to enter into a Return-to-Duty Agreement. • Will be required to undergo Return-to-Duty Drug and Alcohol testing. • May also have to submit to Follow-Up testing and a treatment program as determined by a Substance Abuse Professional. • Treatment is not directed by management.

11. Searches • General comments on the law. • Reasonable and probable grounds? Random? • Warrants are not required – not a criminal matter (unless it becomes one.) • Expectation of privacy is a malleable thing. • Advance notice required. (Policy, crew talks)

12. What drugs? Panel 5 plus Oxy should be the min. • Amphetamines: crank, ecstasy, crystal meth. • Cocaine: crack • Phencyclidine: PCP, Angel Dust • Cannabinoids: Marijuana, THC, pot, hash, hash oil • Opiates: heroin, codeine, morphine • Oxycodone • Others may be added

13. Screening v. Confirmation Drugs • Urine drug screens (quick tests) which are non-negative are subject to confirmation testing at the Certified Lab. • Confirmation testing requires sample to be sent to a Certified Lab for further analysis using much more accurate technology. • Non-negative urine screening for marijuana will result in an oral fluid sample being taken for testing at the lab. (Shorter testing window.)

14. Screening v. Confirmation Alcohol • Screening by way of a breath test or using an approved saliva swab. • A positive screen will result in a further testing. • The confirmation test will be used to base consequences.

15. LAB - MRO - SAP - REHAB • Four separate roles. • Understanding process is important.

16. LAB Standard – SAMHSA (Urine)Forensic technology & procedures. • Chain of custody. • Split sample. • Confidentiality. • Screening process. • Confirmation – GC/MS. • No false positives. • Blind specimen procedures.

17. Medical Review Officer (MRO) • Licensed physicians • Certified MRO • Reviews all test results • Contacts employees who test positive • Determines if alternative medical explanation exists • Will liaise directly with the Company if questions arise • Reports results to the Company

18. Substance Abuse Professional (SAP) • Meets with employee. • Determines whether or NOT a problem exists. • Prescribes treatment plan if required. • Reports to employer • Writes return to duty letter for employees.

19. Rehabilitation • EFAP • Narcotics anonymous. • Alcoholics anonymous. • Residential treatment. • Out patient. • Publicly funded programs.

20. Ten Steps of a Positive Drug Test • Collection and shipment. • Testing at lab. • Results sent to the Medical Review Officer (MRO). • MRO calls employee. • MRO forwards results to employer. • Notice of Suspension • Mandatory Referral to Substance Abuse Professional (SAP). • Return to Duty Agreement. • Return to Duty testing. • Follow Up testing if ordered by the SAP

21. Five Drug Testing Scenarios • Safety Sensitive (formerly Pre-Hire) • Post Incident • Reasonable Cause • Return to Duty • Follow Up

22. 1.0 Safety Sensitive (Pre-Hire) • Some contractors have opted to test new-hires for safety sensitive positions. • Most majors have done so. • Must have a confirmed negative drug and alcohol test before starting work.

23. 2.0 Post Incident Testing • Only carried out in specific circumstances. • Not every accident/incident will result in testing regardless of the extent of damage or injury.

24. Testing will only be considered where…. • A Triggering Incident has occurred, and; • The acts or omissions of the worker are causally linked to the damage or harm; and, • Factors outside the control of the Worker have been ruled out as the cause. (Environmental or mechanical.)

25. What is a Triggering Incident? • A fatality • A Recordable Injury • Damage to property in excess of $0000.00 • A Reportable Environmental incident • A Close Call where if the situation was slightly different any of the above could have reasonably occurred. Includes serious lock-out/De-Energization violations.

26. Acts or Omissions • Not following safe work procedures • Breaches of SOP/JSA/SWA • Dangerous work practices whether established in a written rule or not. • Lock out violations.

27. Rule out environmental factors… • Weather, road conditions • Mechanical failure outside of the control of the worker.

28. Scenario: Possible Post-Incident Test • Buncher operator drove off a road and rolled machine. • Seatbelt not worn • Large cut on head • Damage $40,000 Is a test reasonable?

29. Scenario: Possible Post-Incident Test • Pick-up struck deer. • Seatbelt was worn, no injuries. • Driver stated he thinks he was driving the posted limit. • Unwitnessed. • Damage $15,000 Is a test reasonable?

30. Scenario: Possible Post-Incident Test • Supervisor sees an experienced operator repairing processor head. • Machine is still running, fully-energized & not blocked-out. • Operator claims that the malfunction of the hydraulic head tilt cylinders prevented him from placing the head in a better position. Is a test reasonable?

31. Post Incident Testing • Both drug & alcohol testing will be done. Urine drug screen to be used and relied on (if negative) so long as there are no signs of of drug use. • If the screen is non-negative for any drug, then the sample will be sent to the lab for confirmation testing. • Oral Fluid will also be carried out if the drug screen is non-negative for marijuana. • Testing must be completed as soon as practicable. Industry standard is within 8 hours for alcohol, and 32 hours for drugs.

32. 3.0 Reasonable Cause Testing • Legal duty to immediately investigate any reports or observations of impairment or on the job use of Drugs or Alcohol.

33. Reasonable Cause Testing: SOO -SOBA • Based on Specific Objective Observations concerning the Speech, Odor, Behavior and Appearance of the employee. • Testing for both drugs and alcohol. • The odour of what is believed to be alcohol or marijuana or evidence of on the job use should trigger testing.

34. Alternative medical explanations • Impairment for any reason must be investigated • It is recognized that not all impairment is caused by drugs or alcohol • Stress • Head injury • Diabetes, stroke, heart failure • Fatigue • Other causes (chemical exposure)

35. Signs of impairmentDrugs…the eyes have it! Depressants Opiates, Methadone Benzodiazepines, Propoxyphene, Methaqulaone Barbiturates Pupils constrict. Stimulants Amphetamines, Cocaine, PCP Pupils dilate.

36. Depressants..

37. Stimulants…

38. Marijuana..

39. Possible head injury/strokeHow would you respond?

40. 4.0 Return-to-Duty Testing • Must have return to duty letter from SAP. • Test results must be negative before employee can return. • Will be tested for both drugs and alcohol.

41. 5.0 Follow Up Testing • Medical decision to be determined by the SAP. • Unannounced testing for up to six years for drugs and five years for alcohol. • Most likely a shorter period (one or two years, maybe less) • Legally recognized for both drugs and alcohol.

42. Alcohol…

43. Alcohol…

44. So I got drunk last night.. Workplace implications TimeBAC 2 a.m. get to bed .180 6 a.m. up for work .120 7 a.m. drive to work (criminally impaired) .105 8 a.m. arrive at work .090 11 a.m. involved in Incident .045 (legally impaired for workplace H&S)

45. Legal obligation to ensure a safe workplace • In addition to Worksafe legislation and OHS rules, Criminal Liability will now be imposed by way of Bill C45. • These provisions of the Criminal Code affect all organizations and individuals who direct the work of others, anywhere in Canada. • This specifically covers supervisors, managers, owners and directors.

46. Criminal Liability and Bill C45 • For an individual: • 10 years in prison for injury, • Life sentence for a death, • $100,000 fine plus a victim surcharge. • For the company: • unlimited fine

47. Stewart v. Elk Valley Coal SCC does a 180 • Company had a policy requiring people who use drugs to disclose their use and seek help – they would not be disciplined if they came forward. • Employee was aware of the policy and had attended a training session. • He used cocaine regularly but did not disclose this to the employer. • He tested positive for cocaine after an accident. • He claimed that he had a disability (substance use disorder.) • The company fired him.

48. Elk Valley continued… • The union filed a grievance and a human rights complaint claiming that the employee deserved protection and that the company had discriminated against the employee. • The case was appealed all the way to the Supreme Court of Canada. • The SCC agreed that there was no discrimination and if there was, reasonable accommodation had been provided. • The SCC determined that the Human Rights tribunal had made a “reasonable decision.” • The ruling supported the lower courts’ findings that the employee was fired for breaching the policy and not because he was “addicted.” • They ruled that the degree of his drug use was not such that it rendered him incapable of making decisions.

49. What does Elk Valley mean for employers/ees. • Employees can be compelled to disclose their use of drugs or risk losing their job if they test positive. • Termination can be supported unless the employee can demonstrate a high degree of addiction. • Your policy must be clearly drafted. • Employees face losing their job for off duty recreational use. • Huge change in the law. • The big question though is how will this apply to marijuana?

50. Implications of Legalization • Nothing changes with regard to on the job use, possession or impairment. • Employees are required to be fit for duty. • It is hoped that the federal government will establish a limit as has been done with alcohol. • Drug testing programs should include Oral Fluid testing which reduces the testing window – indicative of recent use. • Employee’s who have a dependency should be accommodated (to a point) • Until the law is settled, a greater focus will be on the job impairment and not recreational use. • How will this fit into the Elk Valley scenario????