The union representing Toronto Transit Commission (TTC) workers says that its members continue to find themselves between a rock and a hard place when it comes to disclosing their medical cannabis use to the transit provider.
Generally, employees with an authorization for medicinal cannabis would disclose it to the employer prior to any triggering event prompting testing, or random selection, so that it can be reviewed to determine whether any accommodation is necessary, says TTC spokesperson Susan Sperling.
However, under the TTCs random drug-testing policy, even employees who do disclose their cannabis use can find themselves reassigned or taken off the job indefinitely, which can result in significant pay cuts or total loss of pay, says ATU Local 113 president Carlos Santos.
Which is why some TTC employees are choosing to keep their medical cannabis use to themselves, an even trickier proposition when all of a sudden they find themselves called in for a random drug test, which is mandatory for TTC employees. Their decision not to tell their bosses can make them subject to discipline all the way up to firing if they fail a test or not.
Santos calls the policy unfair and discriminatory.
Sperling says that the TTC must review its obligations pursuant to the Ontario Human Rights Code when considering any decision to fire someone for medical cannabis use. But it seems more workers are being let go than accommodation is being made for their cannabis use, with a number of high-profile cases over the last year, including that of subway operator Ellaine Farrell, who was forced to go back on oxycodone to manage her pain issues, even though her doctor says cannabis oil is more effective.
In 2017, the TTCs right to randomly drug test its employees was upheld after a court challenge launched by the ATU. The union had been opposing the plan since it was first proposed in 2010, but the courts found that workers would not be unfairly burdened and that public safety would be increased.
Recently, a former TTC track worker was fired after he failed an oral swab test back in December that detected around double the 10 nanogram limit allowed by the TTC.
The worker, who spoke to NOW on the condition of anonymity, maintains that he had not smoked for 17 hours prior to the test. He produced a prescription for his employers after the test, showing that hes authorized to use three grams of medical marijuana a day to treat his epilepsy and back pain. He says he was first suspended by the TTC two weeks after the test and then fired three weeks after that.
Its a growing problem for the TTC made more complicated by the fact that impairment is a flexible term for medical cannabis users and when there is no consensus on whether oral swab tests of the kind that the TTC administers are even reliable.
The TTC claims they are. Sperling says that the cut-off used by the TTC to determine impairment is based on the expert-recommended cut-off levels.
But according to a 2017 report of the Canadian Drug Policy Coalition, It is not possible to set a per se level for oral fluid that would indicate likely impairment.
This is of particular concern for more regular cannabis users, for whom detection of cannabinoids in oral fluid (OF) may not reflect recent use since they have higher initial concentrations of OF THC than occasional smokers, and low concentrations can be detectable for days in chronic users, the report says.
When it comes to medical users, the report says the bigger picture needs to be considered.
It is also important to note that medical cannabis users use cannabis, like other medications, to address symptoms, like reducing pain or relieving anxiety. This symptom management allows them to function normally, and some may feel it enables them to drive more safely.
According to Sperling, the TTC does not track the number of employees it disciplines or terminates due to cannabis use, medical or otherwise. Nor do they have a hard and fast policy on the use of other medications by its employees.
Santos argues that the TTC has an obligation to allow its workers to follow doctors orders not punish them for it through a baseless random drug-testing policy that fails to protect the public.
