DOT calls for vigilance in drug testing

Since the Cannabis Act came into effect, in October of 2018, many Canadian logistics companies have expressed concerns regarding how the legalization of cannabis could affect the transportation industry. Moreover, under the new impaired driving laws passed by the Canadian government in December 2018, having an illegal blood alcohol concentration within two hours of driving is a criminal offence. Many Canadians have expressed objections to Bill C-46, worrying that they could be facing criminal charges for driving with a blood alcohol concentration over the legal limit, even if they were sober while driving.

Steve Bojan, vice president and transportation practice leader at Hub International, says vigilance is needed in truck driver testing and monitoring. According to Bojan, a positive drug test carried out after a crash can be used to increase the potential value of the liability claim against a vehicle operator, even if the drug was not the cause of the crash. However, not implementing a test after an accident, or when one is required by regulations or company policy, can be very detrimental to the defense as it raises questions as to why a required test was not completed.

Although every company is responsible for implementing policies in regard to cannabis use during work hours, few regulations pertaining to drug testing while driving have been put into place. Some Canadian companies and organizations have established that employees cannot consume cannabis at any time, even when off duty, while others have been more flexible. Currently there is no impairment test which can be done in the field for immediate results for cannabis, as there is with alcohol and the use of a breathalyzer. Until there is such a field test available commercial trucking companies will have to rely on their own program of testing, be it pre-employment, random and/or reasonable suspicion testing to make sure they are keeping their drivers, and the public, safe on the road.

Here are some steps as outlined by Steve Bojan to help motor carriers to protect themselves from legal liability:

Educating drivers and managers regarding regulations

Educating transport drivers and managers about company policy of drug and alcohol use, including medical cannabis, will help to decrease risk of driving under the influence. Some drivers may not be aware of when it is acceptable to consume these substances, and how long they can stay in the body’s tissues, resulting in positive test results. In addition, supervisors should be trained to detect warning signs or suspicious behaviour.

Establishing a strong company policy

Motor carriers can follow Federal Motor Carrier Safety Administration (FMCSA) regulations for substance abuse testing, including procedures around pre-hiring, and random and reasonable suspicion. Following a strong internal company policy can help to reduce the risk of legal liability.

Educating drivers regarding laws for transporting narcotics

Drivers need to be aware that transporting narcotics in a commercial vehicle is prohibited, since the motor vehicle is considered to be an extension of the workplace. Some drivers may not be aware that transporting an unopened package of cannabis inside the vehicle is illegal and can result in them getting arrested.

Performing comprehensive background checks

According to FMCSA regulations, drivers who test positive for drugs and/or alcohol must follow employee substance abuse education program and have structured testing for at least 12 months. Hiring a driver who had previously failed a drug test at a previous fleet carrier makes the new employer responsible for the driver’s structured drug testing and monitoring his or her behaviour.

Although the legalization of cannabis will likely bring some changes to the logistics and transportation industries, it is not clear how it will affect these sectors. According to Steve Bojan, establishing clear guidelines and following safe practices can help to decrease the risk of from liability and keep the roads safe.

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