Yes, We Do Things Differently “Up North”

What follows are some of the key areas where testing in Canada differs from the US. Of note, the information provided here is relevant to drug and alcohol testing in Canada and not related to the US Department of Transportation (US DOT) testing, other than where identified as follows.

For context, the US DOT 49 CFR Part 40 provides regulations on how to conduct required drug and alcohol testing and what procedures to use. These regulations apply to transportation employers, safety-sensitive employees – including self-employed individuals, contractors and volunteers covered by the DOT agency – and service agents. The sectors covered under these regulations are all federal aviation, motor carriers, railroad, transit, and pipeline and hazardous materials, as well as the US Coast Guard.

There are several overarching differences in workplace drug and alcohol testing between Canada and the US.

The focus on testing in Canada is related to employer due diligence in providing safe workplaces. Any workplace testing is based on that goal and premise.

In Canada, there is no differentiation between legal and illegal substance use. An employer’s responsibility is not enforcement or policing. Substance use that impacts safety is not influenced by the regulatory status of a drug; it is the action of the substance that negatively impacts the ability to work safely that is the concern. In Canada, employers are required to accommodate an employee confirmed to have a substance use disorder (SUD), as this is a protected ground from discrimination under Canada’s federal Charter of Human Rights. As such, voluntary disclosure of an SUD is an integral component of drug and alcohol policies in Canada.

For the past 50 years, the alcohol level for criminality in Canada is 0.08% Blood Alcohol Concentration (BAC). However, it is scientifically recognized impairment with some individuals can occur at lower levels of alcohol. In recognition of this, many jurisdictions have reduced this level to 0.05%, and most workplaces follow 0.04% as per the US DOT. Unlike alcohol, there is not a consensus for any drug, from lab-based specimen analysis, at or above which will provide assurance of impairment. Positive test results for Oral Fluid (OF) are indicative of safety risk, not impairment.

1. What are the regulations governing workplace drug testing in Canada?

It may surprise you to know that there are no regulatory requirements that provide employers with direction or guidance on drug and alcohol testing in Canada. In particular, with cannabis, despite all the fanfare surrounding legalization in October 2018, the only legislative change was to the Canadian Criminal Code which was revised to include “Blood Drug Concentration” (BDC) prohibitions for driving. This is not to be confused with a definitive level equated with “impairment”; the new criminal offenses are referenced as being at, or over, a prohibited BDC for certain impairing drugs, including THC and cocaine.

2. What are the standard reference sources for an employer who wants to conduct drug and alcohol testing?

For over 30 years, the US has had comprehensive programs in place for the transportation industry under the regulations of US DOT 49 CFR Part 40. It is imperative for Canadian companies who have employees working in the US in any of the identified sectors to follow these regulations. The most common situation where this may apply to Canadian employers is in trucking, where the specifics of the Federal Motor Carrier Safety Administration (FMCSA) must be followed by those conducting business in the US.

The standards for many processes under Part 40 are routinely referenced in Canada, such as collection protocols for specimens, which are valuable and ensure consistency with protocols to protect all involved in the process and ensure consistency in application. However, there are several significant differences. As an example, it is highly unlikely that observed collections would ever be permitted or conducted in Canada. Word-for-word duplication of US program elements is not recommended and inconsistent with many Canadian protocols.

The Canadian Model for Providing a Safe Workplace (the Model), current version 6.1, was created from a need that arose in the oil and gas industry in Alberta, because of the absence of any federal regulatory requirements for drug and alcohol testing. It was a collaborative initiative by the Construction Owners Association of Alberta (COAA) and Energy Safety Canada. The intent was to create a general best -practices guideline for industry use, particularly for heavy industrial construction and maintenance. The Model has evolved over the years and is commonly referenced by many working in the field of drug and alcohol testing and occupational health and safety. However, a working knowledge of the Model details and its corresponding application is inconsistent and often inaccurate. The Model was never intended for application across all sectors and work environments. It is not a regulatory document and does not have that weight of application. This is important from the perspective that many employers are under the misunderstanding that it is the required standard in Canada, which is not the case.

Third-Party Administrators (TPAs) are often a source of information for employers seeking guidance when creating their policies and/or providing direction on drug and alcohol testing. TPAs have certified collectors who collect specimens. They do not conduct drug and alcohol testing, which is a common misunderstanding. There are very few, if any, TPAs who are owned by, or operated under the guidance of, a licensed health care professional. Therefore, they are not bound to a strict ethical code, or necessarily employ anyone with the depth of knowledge to advise employers on the specifics of drug and alcohol testing. TPAs can best serve their clients by providing references to the previously noted resources and associated companion documents.

Case law in Canada is what guides us in best practices regarding the “when” and the “how” of testing. Familiarity with recent trends in drug use, regionally and geographically, is also an important indicator of what to include on your testing panel.

3. What certification/accreditation is required for a laboratory’s analysis to be legally defensible?

Laboratories in Canada that analyze drug specimens are not required to have Substance Abuse and Mental Health Services Administration (SAMHSA) certification. This is another area of confusion and misunderstanding. The most important aspect of lab-based analysis is that laboratories conducting drug testing follow strict protocols and analytical processes that follow industry standards of best practices, which will withstand legal rigor if ever challenged. The standard acceptable accreditations are ISO 17025 for substances of abuse, or the College of American Pathologists (CAP) Accreditation Certification.

4. What drug panels are acceptable?

There is no standard testing panel, or group of panels. Many employers will follow the US DOT “panel 5”. Reference to any ‘panel’ number is irrelevant to anyone other than a lab or a TPA who collects specimens to send to an accredited lab for analysis. It can be very confusing for employers and has no meaning or relevance to them.

It is important for employers to know exactly what they need to be testing for and why. It is not uncommon for employers to identify a 12 panel, under the assumption that more is always better, and not realize that in addition to other concerns, several of the drugs on this panel list are no longer available or on the market in Canada, while others on this panel are not substances of abuse, and the employer has no authority or rationale to be testing for them.

The generally accepted panel includes cannabis, cocaine, amphetamines, 6-acteylymorpohine (6-AM, heroin) and other opiates, more recently including fentanyl, even though at least one Canadian TPA has been in the practice of advising employers that it’s not necessary, because it’s a street drug and not a problem in the workplace. In my 20+ years experience of helping employers manage substance use in the workplace that assertion is not supported. Benzodiazepines are an important addition to the panel that many employers have made. These drugs are highly misused, abused, over-prescribed, and the “go-to” option to mitigate alcohol withdrawal. As alcohol continues to be the most common substance of abuse in Canada, their use is much more common than may be recognized.

5. What are the most appropriate specimen types for testing?

Until relatively recently urine testing remained the gold standard in Canada. Cannabis legislation has changed all that. Urine testing in the US and Canada is currently only for an inactive metabolite. With cannabis in particular, presence of THC metabolites can exist for several weeks after consumption. Urine testing equates with expensive “pee.” In Canada, urine testing is generally reserved for return-to-work and ongoing follow-up testing, because in these circumstances, abstinence from substance use is frequently a requirement. Lab-based urinalysis will provide confirmation of inactive metabolite, when present, which is indicative of substance use.

Testing in most workplaces is “event” testing, as sometimes referenced, in situations of post-incident and reasonable cause. In these circumstances, case law is focused on safety risks at the time of testing and, therefore, a requirement to prove the use of substance at the time. Other than blood – which is not an option in Canadian workplaces – the best indicator of current substance use is oral fluid. Lab-based oral fluid testing will provide confirmation of active or “parent” drug, on which disciplinary – and legal action, if necessary – can be taken.

Hair testing is generally not accepted in Canada because there is no opportunity to test for active substance, nor differentiate as to whether the substance use was during work time or outside of works hours. It is generally considered an invasion of an individual’s privacy. Exceptions to this are in circumstances of legal cases, such as child custody matters, where complete abstinence is a court-ordered requirement.

6. What is the position on Point of Collection Testing (POCT) vs laboratory testing?

The use of POCT devices in isolation, without any follow-up lab-based specimen analysis, is not an accepted best practice. There are several reasons for this, primarily because of the subjectivity of the interpretation of the results, which varies with the experience and confidence of the “reader” of the results. It is important to remember that POCT results are a screen only and are not reviewed by a Medical Review Officer (MRO). There is no confirmatory analysis. As such, the results of a POCT device testing are not legally defensible.
In some situations, employers may choose to use a POCT for risk mitigation and returning an employee to work versus placing them in a “stand down” situation pending lab-based test results. This is not consistent with best practices and not recommended, for several reasons, not the least of which are the limitations of POCT devices regarding drug panels and levels. It is known that up to 50% of the drugs of concern will not be detected using this method.

The Model directs that any POCT use is required to be followed by lab-based specimen analysis.

Laboratory analysis and confirmation of positive testing is the only legally defensible result in situations of reasonable cause and post incident.

There are additional areas where drug and alcohol testing in Canada differs from the US. What has been identified here is a high-level overview. There are benefits to lack of regulation for employers conducting drug and alcohol testing in Canada primarily related to autonomy and flexibility. The downside to this is that in the absence of regulatory direction, there is much inconsistency and confusion. The result is a wide variance in employer policies and procedures, and a frequent lack of adherence to best practices. The best way to ensure drug and alcohol programs meet employer goals and are legally defensible is to stay current and informed through access to reputable and credible references and resources.