Canada has legalized recreational cannabis, but there are still plenty of questions surrounding the drug’s use within the context of trucking. Here are 14 key takeaways you should know.
Commercial truck drivers continue to face a zero-tolerance requirement in Canada and in the United States. In Canada, there is no mandatory government random drug testing so far.
Cannabis is legal in Canada but listed on the US federal government’s Schedule 1 List of illegal drugs (with heroin, ecstasy and LSD). U.S. truckers are regulated federally. It is illegal to transport all cannabis — including medical cannabis — between states, even though some jurisdictions have legalized cannabis. Canadian truckers driving in the U.S. must comply with U.S. laws.
All Canadian cannabis contains at least some THC and is more potent today, containing 13-20% higher THC content than historically. Edibles raise new concerns about THC concentration, slower/unpredictable absorption, and possible inadvertent overdose.
Canadian workers are generally protected from drug testing under the Human Rights Code violation/infringement of privacy rights. Drug testing may be permissible in some limited circumstances. Where a requirement to drive in the U.S. is part of a trucker’s employment, motor carriers may drug test to comply with U.S. regulations.
In Canada, drivers legally authorized to use medical cannabis will not be subject to Ontario’s zero-tolerance drug requirements for commercial drivers, but penalties and criminal charges will still be laid if the driver is impaired.
An employee who has a medical cannabis prescription must be “accommodated” unless they are employed in a safety-sensitive position. Canadian employers have no duty to accommodate an employee regarding use of recreational cannabis. Cannabis addiction may be considered a disability and accommodated to the point of “undue hardship”.
S. commercial truck drivers, however, are subject to random drug testing including pre-employment, after an accident, and after a failed drug test. The U.S. Federal Motor Carrier Safety Administration doubled random drug testing rates to 50%, up from 25% of driver positions as of Jan. 1, 2020. Even a trace amount removes a driver immediately from service. All failed drug tests are treated the same way and impairment is not a consideration.
Urine and follicle testing will show the presence of THC in all cannabis products including edibles and topicals. Oral fluid testing will detect smoked, vaporized and edible cannabis products, but not topicals.
In the U.S., oral fluid testing is being considered for mandatory Department of Transportation drug testing. Further, a proposed federal rule will allow motor carriers to choose either currently approved urine testing or hair follicle testing. Follicle testing is more accurate/easily administered and there is less cheating. With a drug detection window of up to 90 days, less repeat testing makes it cheaper.
In Canada, use of oral fluid testing tests for the presence of THC, cocaine and meth. Police officers can conduct a drug recognition evaluation and, with reasonable suspicion that a driver has taken such drug, can demand oral fluid testing with approved drug screening equipment. Failing the test leads to an immediate driving suspension and possible criminal impaired driving charges.
Testing for impairment/drugs has been only partially successful. The Drager Drug Test 5000, the saliva test used by police to detect THC, has shown error ratings of up to 14%, and three are unresolved concerns regarding use in Canada’s climate.
Impairment testing using an app known as Druid is underway, regarding functional impairment from drugs, alcohol, concussion, cognitive decline, or fatigue compared to a baseline.
Online Jan. 6, 2020, the US.. federal Drug and Alcohol Clearing House electronic database is required for tracking commercial drivers’ licences regarding positive tests for illegal drugs, alcohol use, refusals to take tests, and other violations. Records remain for five years after a violation, and will be kept in the FMSCA database. Canadian motor carriers must also comply. Both carriers and truckers should review the requirements carefully.
Kim E. Stoll
Kim E. Stoll is a partner with Fernandes Hearn LLP in Toronto, and can be reached at 416-203-9509, or by emailing email@example.com. This article is intended for information purposes only and does not constitute legal advice. All posts by Kim E. Stoll