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Oil and gas industry presses provinces, Ottawa on pot ban in dangerous jobsites

Worried that dope-smoking workers could cause a “catastrophic event” at an oil and gas operation, an oilpatch safety group will press the federal and provincial governments to ban marijuana in hazardous workplaces after the drug is legalized.

Enform, which is funded by oil and gas industry groups, had raised its proposed ban with the federal cannabis task force, but the Liberal government’s legislation, released last week, is silent on workplace safety.

The group will lobby the provinces and Ottawa to harmonize labour rules to allow for a ban in so-called safety-sensitive workplaces, such as refineries, gas plants and mines, until drug testing for cannabis improves.

“If people in safety-sensitive positions, or safety-sensitive projects or work, are not competent to do the work, a catastrophic event could unfold,” Cameron MacGillivray, Enform’s chief executive, said Monday.

“That’s the sort of thing that causes great concern to the industry.”

Buying marijuana for recreational use is expected to be legal in Canada by July 2018 after the Liberals introduced legislation on Thursday. It leaves the federal and provincial governments a little more than a year to resolve critical questions, including how cannabis will be distributed and how legalization will impact workplaces.

While labour ministers discuss the implications for workplace safety, a Calgary employment lawyer said Enform’s proposed ban, if imposed, could be challenged in the courts.

John Batzel, a Bennett Jones lawyer, said while he believes employers should be allowed to ensure there is no misuse of cannabis in dangerous workplaces, he expects the courts would be asked to weigh in.

“There is reasonable likelihood that such a challenge would succeed based on the current case law,” Batzel said.

On-the-job drug testing is considered an invasion of privacy and potentially discriminatory in many Canadian workplaces, though the courts have given employers some leeway on job sites where safety — and sobriety — are critical, including the oilpatch.

Still, current drug testing technology cannot detect whether someone is impaired by marijuana. Unlike the breathalyzer test for alcohol, oral swabs and urine screens can only indicate whether someone has recently smoked or ingested pot, not whether they are high.

Until drug testing can detect intoxication with legal limits, Enform believes governments must allow employers to impose a zero-tolerance policy in workplaces where safety is paramount.

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While MacGillivray makes the case for more research into drug testing, his group is also seeking guidance on how employers should handle workers who are suspected of being high on the job in the meantime.

“This is another thing that we have to be more cognizant of, especially in the years going forward where people may want to try it that normally wouldn’t believe they should try it in the workplace,” MacGillivray said.

Barbara Johnston, a Calgary employment lawyer who has represented companies in drug and alcohol-testing court challenges, agreed with Enform that there is “an imperative on the government to address this important concern” of safety in dangerous worksites.

Ottawa acknowledges the cannabis task force that helped inform its legislation had heard from employers, especially those in healthcare and the oil and gas industry, who are worried about workplace safety.

The government says federal, provincial and territorial labour ministers continue to discuss workplace impacts.

Labour Minister Christina Gray says the government has allowed enough time for a review of provincial employment standards and labour legislation, in response to criticism from business groups.

Alberta Labour Minister Christina Gray said in a statement the government would work alongside Ottawa and the provinces to ensure employers can keep their workplaces safe from high pot smokers who could cause serious incidents.

Oil and gas companies often demand their new hires, and contractors who are new to their sites, take drug and alcohol tests. While these tests have been the target of legal challenges, random screens have been even more controversial.

Oilsands giant Suncor Energy has been locked in a lengthy court battle to introduce random drug and alcohol testing at its operations in Fort McMurray. The company claims the program is necessary because it is dealing with an “out of control drug culture,” but the union argues random tests violate privacy rights while failing to ensure safety because the screens don’t detect impairment.

Batzel, the Bennett Jones lawyer, said a Supreme Court ruling on random alcohol screens laid out the conditions under which this controversial testing method is permitted, including that there must be evidence of a general problem of abuse in the workplace.

He believes any workforce ban would likely have to meet a similar test.

“Before the employees’ right to privacy to consume … a legal drug is limited, you’re going to have to establish that there is a particular problem in that workplace,” Batzel said.

rsouthwick@postmedia.com

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http://calgaryherald.com/business/energy/oil-and-gas-industry-presses-provinces-ottawa-on-pot-ban-in-dangerous-jobsites