With the legalization of recreational cannabis in Canada, truck drivers and fleet owners across North America need to read the fine print.
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Driving high, marijuana and car key isolated on white
Canadians have been able to access cannabis by prescription for medical purposes since August 2016 under the Controlled Drugs and Substances Act.
“That regulation sets out the framework for the commercial production and distribution of medical cannabis,” said Toronto lawyer Carole McAfee Wallace. “Producers are licensed by Health Canada and have to meet all kinds of requirements in terms of security, sanitation and distribution.”
An individual with a script from a doctor can order cannabis from an approved supplier, said
“There’s a huge body of case law for drinking and driving, and Constitutional rights, and the measurement of that in one’s bloodstream. So we anticipate that once this new law is in force there will be similar challenges.”— Carole McAfee Wallace, transportation lawyer, Fernandes Hearn LLP
McAfee Wallace, who works for Fernandes Hearn LLP, a firm specializing in transportation law. However, legalization for recreational use stands to broaden accessibility, with each province and territory able to set some parameters around production, distribution and use. Legalization will also affect other, existing laws such as provincial and territorial highway traffic acts.
Challenges anticipated
“There will be zero tolerance for any level of cannabis in a commercial motor vehicle driver in Ontario,” she explained, pointing to an automatic three-day licence suspension.
While there are parallels with laws governing alcohol consumption, breathalyzer tests are widely accepted whereas the Canadian government has yet to approve a similar device for cannabis. “We can just imagine the challenges. There’s a huge body of case law for drinking and driving, and Constitutional rights, and the measurement of that in one’s bloodstream. So we anticipate that once this new law is in force there will be similar challenges.”
Furthermore, the zero tolerance approach under the Ontario Highway Traffic Act applies only to recreational use. McAfee Wallace said there’s a “carve-out” for approved medical use.
Drivers are cautioned to take a cautious approach when unsure about the rules, and especially
“A fit-for-duty policy works to protect the employee’s rights to privacy but also allows the employer to maintain their duties of protecting their other employees and public safety. It isn’t a one-size-fits-all type of policy. It depends on the specific workplace.”— Jaclyne Reive, corporate lawyer, Fernandes Hearn LLP
when crossing borders. Jaclyne Reive, a corporate, commercial and regulatory lawyer who also works at Fernandes Hearn, said the United States expressly forbids impairment of commercial drivers at the federal level. Truck drivers who are based in Canada or travel there must never enter the U.S. with any cannabis in their possession or any residue in their system.
The same principle applies inter-provincially in Canada, because provincial and territorial laws may differ. Reive said drivers should always check what laws apply in each jurisdiction where they intend to travel to, to ensure that they are in compliance.
Set firm policies
Employers should have sound policies in place that reflect the new legislation and other rules governing employee relations. “A fit-for-duty policy works to protect the employee’s rights to privacy but also allows the employer to maintain their duties of protecting their other employees and public safety,” Reive said. “It isn’t a one-size-fits-all type of policy. It depends on the specific workplace.”
While employers will be able to prohibit the possession and consumption of recreational cannabis at work as they would alcohol, they can’t prohibit prescribed medical use unless the employee is in a safety sensitive situation, which could include driving or operating, or repairing machinery.
“The employer would want to define in their policy what they consider to be safety sensitive so it’s clear to employees whether or not they need to disclose something,” Reive added.
Once an employee discloses their medical use, or a dependency that meets the definition of a disability, the employer must accommodate the employee up to the point of undue hardship.
“Keep in mind that the duty to accommodate always applies to medical cannabis but does not apply to recreational cannabis unless it’s to the point where the employee actually has a substance abuse problem,” Reive said. In Canada, an addiction could constitute disability under provincial and federal human rights and employment legislation.
Depending on a company’s resources, the duty to accommodate could range from offering the employee a job-protected leave of absence while they undergo treatment, to reassigning an employee to a desk job or providing access to counselling.
“Rules are only effective if employees know about them and are aware of the terms and what the employer actually expects,” Reive said. “Look at your policy, make sure it’s robust, detailed and forceful, and then review it with your employees and get them to sign off that they’ve received it, understand it, and have had the opportunity to ask questions. That will then give the employer a little more control over how they manage employees who may not comply.”
U.S. federal law prevails
South of the border, Washington Trucking Association safety director Mike Southards says commercial truck drivers are federally regulated in the U.S., and federal laws prohibiting marijuana usage, including medically prescribed, prevail.
“It falls under federal rules because drivers cross state lines,” Southards said, explaining the complexity of Washington State decriminalizing marijuana possession even as federal laws haven’t. “State law can be more stringent but can’t be less.”
Even when drivers aren’t on the job, they are subject to random testing, and the cut-off for residual marijuana in their system is five nanograms. “They can have up to four nanograms in their system but if they reach five it’s the same as a failed drug test,” Southards said.
If a driver is prescribed medical marijuana in a state that allows this, they must self-report and hand over their commercial driver’s licence for a set period of time.
Does this apply to a mechanic working exclusively in-state? “If it’s over 10,001 pounds gross vehicle weight rating, then it is considered a commercial vehicle for intra-state travel,” Southards said. He added that a driver who has a regular licence and not a commercial one is not bound by commercial truck rules. Federal laws are also invoked if the truck is carrying hazardous, placardable materials.
A lot of liability
Southards said the association supports the marijuana prohibition for commercial drivers and successfully lobbied the state back in the early 1990s, prior to legalization, for a law requiring drivers who test positive for drugs to surrender their commercial licence until they have completed an approved substance-abuse program and successfully passed a return-to-duty test.
The association also runs a drug and alcohol program for its members and their employees.
“We don’t want somebody driving a commercial vehicle under the influence,” Southards said, explaining why medically prescribed marijuana is included. “Marijuana will stay in your system based on your metabolism up to 90 days. That gives us a lot of liability when somebody’s out there operating under the influence.”
Overall, Southards expressed optimism, saying the number of positive tests has risen less than one percent since Washington State legalized marijuana. “I think the trucking industry has educated the drivers on that subject pretty well.”
NOTE: Information in this article does not constitute legal advice and is intended for information purposes only. Laws can vary by jurisdiction, and fleet owners and operators should seek legal advice relevant to their specific circumstances.
— Saul Chernos
Saul Chernos is a Toronto writer.