The legal sale of recreational cannabis will begin on October 17th. As such, there are a number of important considerations for employers implementing or updating their workplace drug policies.
So what options are available to employers seeking to ensure that their workplace is aptly equipped for this new legislation? Are blanket prohibitions against cannabis with severe consequences for policy violations appropriate? Is it justified to impose random drug testing to regulate cannabis in the workplace? While time will tell how these regulatory dilemmas will be handled by the courts, what is clear is that drug policies will need to reflect a certain degree of nuance and appreciation for individual circumstances. Employers will be faced with the challenge of maintaining safety standards while respecting the privacy of their employees and detecting actual impairment when enforcing their drug policies. While the courts will take into consideration all relevant circumstances including the health and safety risks associated with the employee’s job, establishing intoxication will be an important element of a satisfactory drug policy, and imposing appropriate consequences for violations will be essential.
One theme that has consistently guided the courts’ evaluation of company drug policies is the level of danger associated with the occupation in question. Generally speaking, a safety-sensitive job will permit employers to use more invasive and/or stringent methods to control intoxication and drug abuse at work. On the other hand, occupations without direct safety implications warrant policies and disciplinary measures that are appropriate for the relative potential consequences.
When it comes to prescribed medicinal marijuana, employers must be cautious and review whether their rules on drugs in the workplace discriminate against disability or personal use. Companies will need to consider their duty to accommodate for employees’ medical needs, while taking proper precautions to mitigate risks and dangers. This is especially so for jobs that are inherently dangerous or carry with them health and safety concerns. The courts have expressed favor for drug policies requiring workers in safety-sensitive roles to inform their employers of prescriptions to medical marijuana or other medications that may impair their abilities to work safely. Employers may be justified in removing an employee from a safety-sensitive position if they are confident that impairment from cannabis use is a danger. When the stakes are high and standards are in place for workers to inform their employers of any potentially impairing medications, a serious policy violation may justify termination. However, where medicinal cannabis users abide by appropriately enforced policies, employers must treat marijuana as it would any other medication used by its employees. This means that progressive warnings and proactive diligence to limit risks in safety-sensitive occupations are warranted.
With the introduction of the Cannabis Act, employers will now have to ensure that their drug policy is also equipped to regulate recreational cannabis use in the workplace. Companies are entitled to prohibit recreational marijuana use during the working day and to enforce policy against intoxication. However, such policy will need to go beyond a reliance on chemical detection and be tailored to identifying and prohibiting actual impairment. Throughout the era of marijuana prohibition, employers could rely on blood, urine, or saliva tests to detect the presence of THC (the principle psychoactive compound in marijuana) and prove a violation to their drug policies. Estimates suggest that marijuana can be detected in the body ranging from a few days up to several months after use, depending on the individual. This means that employers could enforce their zero-tolerance drug policies without any evidence that the employee was high or even slightly impaired at the relevant time of incident. With the introduction of legal recreational marijuana, this approach is no longer sufficient.
Employers will be required to implement a more nuanced drug policy aimed at intoxication, rather than chemical detection. Courts have found policies for random drug testing to be discriminatory when they impose disciplinary consequences for mere detection of THC and do not consider whether the individual was intoxicated or not. For example, in 2015 an employee who used medical marijuana in a legal manner was removed from his position. Because there were no indications of impairment or dependency on marijuana, the court found that the employee ought to be reinstated and paid any lost wages. The days of surprise urine-tests and zero tolerance to any and all cannabis being detected in the system are over. To stand in court, reasonable disciplinary action must come from clear policy violations and/or evident intoxication on the job. Drug tests may be required only in circumstances where there are either reasonable grounds of suspicion or following any serious or significant accidents or incidents in the workplace.
Detection of actual impairment is going to be essential for satisfactory drug policies. Unfortunately at this point there is no gold standard method to detect intoxication from cannabis. While some companies are working to develop such a product, right now there is no “cannabis breathalyzer” on the market that can reliably indicate just how intoxicated a marijuana user is at any given moment. Until a viable option is brought to market and found to be reliable, employers are left to rely on their drug policies to maintain a safe working environment and accommodate the needs of their employees.
In assessing whether a drug policy is reasonable, the courts have recognized that the nature of the employee’s position will be a prominent factor. As mentioned, consideration will be given to the health and safety risks associated with an employee’s job. Policies for those in safety-sensitive positions may dictate stricter drug standards and mandate regular testing or zero-tolerance to intoxication.
In safety-sensitive positions, the violation of these policies can put the employee, their coworkers, and/or members of the public into direct danger, cause damage to property and impact upon the employer’s business dealings. While random drug testing is often dismissed as overly invasive, the courts have accepted policies for random testing in safety-sensitive workplaces where the employer has demonstrated that there is a general substance abuse problem. For these dangerous jobs, employers will be required to conduct full, fair and consistent investigations to establish actual impairment. If a violation is found, terminating that employee may be a justifiable course of acting to uphold safety standards. Employee privacy rights may be outweighed by drug regulation methods aimed at mitigating the risks of physical harm, especially when the jobs in question are inherently dangerous.
On the other hand, for those working in positions where safety is less of an immediate concern, warnings and progressive discipline will most likely be warranted. In those circumstances, respecting employee’s privacy will likely to be viewed as being of greater concern, and intrusive drug testing regimes may not be upheld by the courts. The Ontario Court of Appeal has stated that an employer’s duty to accommodate “should include consideration of sanctions less severe than dismissal and, where appropriate, the necessary support to permit the employee to undergo a treatment or a rehabilitation program”. For example, an employee in a non-safety position was fired for violating the company’s drug and alcohol policy. It was found that the employee’s termination was unjustified since the company failed to take steps to intervene, identify the problem, offer assistance, and then take action when the help was declined. The established company policy mandated the employer to take steps to try and assist the employee with his substance abuse before resorting to termination. In failing to do so, they had violated their own policy. For occupations without consistent risks of danger, drug policies ought to be less imposing and accommodate for progressive discipline.
Beyond regulating intoxication on the job, drug policies should include provisions for addiction and substance abuse issues. The courts have preferred that employers provide treatment options to employees struggling with addiction, rather than resorting to termination. In a recent case, the employer’s policy mandated that employees self-report their addiction before a drug-related incident occurs in order to properly provide rehabilitation or assistance resources. While this approach was accepted by the Supreme Court of Canada, employers should be aware that one symptom of drug addiction is denial. Accordingly, an employee’s failure to disclose their addition may be a result of the underlying health condition rather than a willful breach of policy. Nonetheless, employers should be cognizant of addiction issues and do their best to fulfill their duty to accommodate for their employees through a comprehensive and effective drug policy.
Employers have a number of factors to consider when implementing drug policies in this new era of legal recreational marijuana in Canada. Policies should be drafted with a sufficient understanding and appreciation for the differences between medicinal and recreational cannabis use. An employer’s duty to accommodate their employee’s personal circumstances must respect their medical needs and/or decisions to use cannabis outside the workplace in a responsible manner. Drug policies need to be tailored to address intoxication and actual impairment on the job. Safety-specific jobs may justify more stringent testing protocols, tolerance levels and disciplinary consequences, while non-safety-specific jobs may require more progressive disciplinary measures and accommodations. Employers will also need to consider providing rehabilitative assistance for employees facing addictions and substance abuse issues.
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[1] International Brotherhood of Electrical Workers, Local Union 1620 v Lower Churchill Transmission Construction Employers’ Association Inc., 2016 CanLII 86106 (NL LA).
[2] City of Calgary v. Canadian Union of Public Employees, Local 37 (Hanmore), 2015 CanLII 61756 (AB GAA); Aitchison v L&L Painting and Decorating Ltd., 2018 HRTO 238.
[3] Airport Terminal Services Canadian Co. and Unifor, Local 2002 (Sehgal), Re, 2018 CarswellNat 991.
[4] Entrop v. Imperial Oil Limited, 2000 CanLII 16800 (ONCA).
[5] City of Calgary v. Canadian Union of Public Employees, Local 37 (Hanmore), 2015 CanLII 61756 (AB GAA).
[6] Airport Terminal Services Canadian Co. and Unifor, Local 2002 (Sehgal), Re, 2018 CarswellNat 991.
[7] Aitchison v L&L Painting and Decorating Ltd., 2018 HRTO 238.
[8] Suncor Energy Inc. v. Unifor, Local 707A, 2016 CarswellAlta 921.
[9] Aitchison v L&L Painting and Decorating Ltd., 2018 HRTO 238.
[10] Suncor Energy Inc. v. Unifor, Local 707A, 2016 CarswellAlta 921.
[11]Entrop v. Imperial Oil Limited, 2000 CanLII 16800 (ONCA) at 12.
[12] Stone v. SDS Kerr Beavers Dental: A Division of Sybron Canada Limited, 2006 CanLII 21073 (ON SC).
[13] Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591.
