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Contractors draw line in the dirt on pot legalization

Legalizing pot creates serious health and safety problems on construction sites that could lead to fatalities, says Ontario’s largest contractors group.
Legalizing pot will make construction less safe, argues the Ontario General Contractors Association, which wants the provincial government to afford job site protection of workers and the public. (File photo)

The legalization of pot will put people’s lives at risk in the workplace, according to the head of the largest association representing industrial, commercial, and institutional contractors in Ontario.

“If this becomes part of our mainstream lives, it’s going to have a deadly impact,” said Clive Thurston, president of the Ontario General Contractors Association (OGCA).

His group is campaigning to inform provincial cabinet ministers, bureaucrats and the public about the health and safety implications due to the coming federal legalization of marijuana next July.

Instead of construction workers ducking out for a cigarette, they could be taking a pot break once marijuana becomes legal on July 1, 2018.

For Thurston, it’s too much, too soon.

In his eyes, legalizing marijuana is not based fact-based decision-making.

“This is not about health and safety. This is a political football that makes everybody feel good and look good,” he said. “It’s got nothing to do with the law. This is simply theatrics and pandering to the crowd. When you do that, bad things happen.”

The Ontario government was the first province to announce a framework in early September for the retail distribution of cannabis through the Liquor Control Board of Ontario, along with a minimum age of 19 for buying, possessing and consuming of recreational pot.

The province indicated the use of recreational marijuana will be prohibited in public places and workplaces.

For Thurston, this is only lip service as Ontario contractors scramble to put together workplace policies to deal with employees who use cannabis recreationally.

Thurston wants government to come forward with specific “rules and tools” for employers for when the July legalization date comes.

“We don’t have a strong enough ability to control this. We don’t have the rules in place,” said Thurston. 

“We already have drug policies we’re going to expand but this isn’t about somebody who’s developed an illegal substance dependency. This is somebody using a legal substance that they don’t have to tell us they’re on. 

“They have to tell us if they’re on medication or if they’re an alcoholic or drug user, and if they don’t tell us, we can’t help them, and that’s when people’s lives are put at risk. But there are no such rules around cannabis.”

Thurston said if workers disclose they are struggling with alcohol or drugs, employers will do their best to help them. 

But there are court cases between companies and workers using medical marijuana. Their fellow workers don’t want to work alongside them for safety reasons. It means restricting them to certain types of work.

Legalizing cannabis use across the board creates greater challenges, and Thurston believes workplace fatalities will occur as a result.

“I guarantee you this: under the current regime we’re looking at, somebody is going to die.

“I don’t mean to be alarmist but I have said this before publicly — we’re setting up a system where somebody is going to die on our sites and it will be related to this.”

Of the workplace statistics he’s reviewed, about 40 per cent of construction fatalities are attributed to some form of impairment.

Simply put, he said, contractors don’t want workers on site who are impaired with alcohol or drugs —even if they’re legal.

Under Section 25 of Ontario’s Occupational Health and Safety Act, employers have a duty of care to present a safe working environment.

If that’s the case, the OGCA wants to see the act amended to treat the construction industry the same as the mining sector, with stronger oversight controls and program development to protect their sites.

“The general public is at a risk because our sites are dangerous and we are working in the middle of high population areas. We don’t want people controlling heavy machinery who are impaired.”

Whether that can be accomplished by July 1 isn’t likely, Thurston said, because the Ontario government isn’t open to having a dialogue about it. 

“We seem more concerned about how we’re going to distribute it; get those (LCBO-run) stores open and who’s getting the money? That seems to be the priority.”

Thurston said the Wynne government hasn’t yet solicited input from industry, and so the OGCA has been making its case to the politicians.

They’ve been quietly meeting with provincial Labour Minister Kevin Flynn and staff from the Attorney General and the Ministry of Health, as well as writing articles and doing interviews.

“We’re trying to get people to wake up. If they’re going to legalize it, fine, but put the structure in place that allows us to protect our workers and the general public.”

Thurston said there’s talk of industry consultation, but no word of government panels or committees being announced.

“In terms of specifically dealing with our concerns in construction and preventing people from dying, (there’s) nothing.”

Earlier this year, Michigan companies reported they couldn’t fill job openings in manufacturing, construction, warehousing or shipping because many applicants couldn’t pass a drug test.

Many of these employers routinely impose pre-employment drug screening for prospective workers who run heavy-haul trucks or heavy machinery.

The same was happening with manufacturers who recalled workers after furloughing them during the downturn.

Some of the companies were choosing not to test employees, ignoring the results, or testing only for certain types of illicit drugs.

The Toronto Transit Commission did obtain the right in an Ontario Superior Court – on public safety grounds – to administer random alcohol and drug testing of employees in the face of resistance from its union under the Ontario Human Rights Code, and have nabbed some employees.

But Thurston said Ontario companies don’t have the legal ability to conduct random drug tests or use them as an employment pre-screening measure. “The courts have not supported it.”

“It’s funny in a country like the U.S., where the freedom of the individual is so paramount, they’ve got no problem (with random drug testing). But here in Canada, where everybody can do whatever they want…we’ve got a problem with this? I’m at a loss to understand it.

“Why are we so different that we don’t care about the lives of our workers and the general public?”

Ontario companies could draw the line and refuse to hire prospective employees who use marijuana recreationally, but there will be legal problems, Thurston said.

For some time, the WSIB has expressed concern about use of pain medication by injured workers.

And there have been high-profile court cases such as the Elk Valley Coal (B.C.) decision this year where the Supreme Court of Canada upheld an employer’s right to dismiss a cocaine-addicted truck driver who was under the influence of drugs when an accident occurred.

Ontario Transportation Minister Steven Del Duca outlined strict new penalties in September for commercial vehicle operators under the influence of drugs and alcohol, much to the endorsement of the Ontario Trucking Association (OTA).

But the OTA and other industry groups are calling on Ottawa and Queen’s Park to put the necessary tools in place for enforce those policies in the workplace, especially in safety sensitive position.

To get ahead of what’s coming, the OGCA is huddling with its legal, human resources, and health and safety consultants to prepare policy for their member companies. Their legal experts are researching how their American counterparts in states like Colorado are handling the cannabis question.

“We’re being responsible. All we’re asking is that the government be equally responsible and help us protect lives,” said Thurston.