Road map to weed in the workplace

Legal considerations as legalization approaches
By Shelley Brown
|Canadian HR Reporter|Last Updated: 10/31/2016

Legalization of marijuana — whether people agree with it or not —  seems to be coming, and soon. Employers need to prepare themselves now because employees are going to be more open about using the drug once it becomes legal. And they will have to deal with the challenges that recreational, as opposed to medical, use is going to involve.

The legal community is working in new terrain. The case law, developed since the 2000 Ontario decision of Entrop v. Imperial Oil Limited, makes it clear that only actual impairment at work, as opposed to evidence of usage, allows for termination for cause. And the determination of impairment is often guesswork with regard to marijuana.

Here’s a look at the issues and case law that might be applied when the legislation comes into effect.

Medical use

Currently, under the Controlled Drug and Substances Act, regulations impose strict controls over how marijuana can be prescribed.

Its consumption in the workplace is another issue altogether. In the employment context, medicinal use of marijuana relates primarily to questions of accommodation. The employer is entitled to confirm that an employee has a medical condition requiring prescribed marijuana. Beyond that, it must accommodate its use up to the point of “undue hardship.” The bar for undue hardship is quite high, restricting what the employer can do.

Even where an employer can establish the existence of a bona fide work-related requirement, the employer must still prove an inability to accommodate the worker up to the point of undue hardship to justify a termination. This applies in safety-sensitive circumstances as well. However, the threshold of undue hardship is slightly lower when safety is an issue.

Tread carefully

Until recently, even in safety-sensitive work environments, an employer’s entitlement to require an employee to undergo testing and to terminate for cause was not available unless it could be proven there had been a series of “significant” events justifying discipline or dismissal. The recent Alberta Court of Queen’s Bench decision Suncor Energy Inc. v. Unifor, Local 707A, has watered down the requirement to allow testing to occur where an employer can establish a demonstrable general problem in a safety-sensitive environment.

The recreational user does not benefit from statutory or common-law protections relating to accommodation. Despite this, an employer should still tread carefully. Case law has consistently shown that the use of recreational drugs or alcohol, both in and out of the workplace, does not automatically entitle an employer to terminate for cause, even where employment policies and manuals prohibit usage.

It is impairment, not usage, that is at issue. If an employee lights up at lunch, but is capable of performing her duties, the employer’s only realistic option is to terminate without cause upon providing reasonable notice or pay in lieu thereof.

Where impairment does create performance issues, the employer’s best option is to implement progressive discipline. Case law has shown that even where written policies exist, particularly where there are no (or limited) safety issues, progressive discipline should be applied first.

Implications of Walker decision

It’s no surprise many of the relevant decisions, both in unionized and non-unionized workplaces, emanate from the oil and gas industry in Alberta. This is due, in large part, to the safety-sensitive nature of the oil patch. The case of Walker v. Imperial Oil Ltd. is instructive. Earl Walker was a non-unionized operations manager.

In 1989, Imperial Oil implemented a drug and alcohol policy. Walker signed a statement acknowledging his commitment to it. The policy expressly prohibited the presence of any alcohol in the body while at work and imposed strict limits on pre-work consumption. Walker’s position was subject to ongoing medical examinations wherein tests were administered to determine the presence of alcohol and illicit substances.

On Sept. 22, 1993, Walker was scheduled for a work-related medical examination during which he provided four test samples. His urine and saliva tests indicated a significant amount of alcohol but the blood and breathalyzer tests were unusable. The nurse administering the tests testified that although Walker didn’t display signs of intoxication, he smelled of alcohol. Based upon the urine and saliva tests, Walker was terminated for cause.

The court held that the tests  were part of a scheduled work-related medical examination — not  random. The court also held that the tests indicated excessive alcohol levels in Walker’s body, which identified actual impairment and not just usage.

It’s an open question as to whether the court would have come to the same conclusion had the testing disclosed evidence of THC — the active psychotropic ingredient in marijuana — in Walker. THC can be detected in the body long after the physical effects of consumption have ended. Thus, THC’s presence doesn’t necessarily connote impairment.  The Ontario Court of Appeal decided in Entrop v. Imperial Oil Limited that unless the test can establish actual impairment at work, an employer cannot dismiss for cause exclusively based upon test results.

Unionized environments

In the unionized environment, the decision in Mielke and Entrec Corp. is of significant interest. Dallas Mielke was a hauler of heavy loads — a safety-sensitive position. Entrec’s written policy stated that for any near mishap or potentially dangerous occurrence, if reasonable grounds existed or there was a failure to provide a credible explanation, a supervisor was required to order a drug or alcohol test. The consistent practice of Entrec was not to terminate for a positive test but to assign the employee to a substance abuse professional and enrol her in a rehabilitation program if it was determined she was addicted. Failure to comply with the policy was grounds for termination.

Mielke had been involved in some minor accidents in the past, but nothing major. The incident at issue involved his truck slipping off a ramp in bad weather conditions. Mielke could have invoked concerns about the weather but did not. The supervisor was not satisfied with Mielke’s explanation for his failure to invoke his right to refuse.

 Mielke was asked to take the drug and alcohol test. He initially refused, indicating he didn’t want to be subjected to random tests for the coming year — one of the implications of taking the test. He later reconsidered, but was terminated for cause anyway. The adjudicator decided that the termination should be upheld, as Mielke was fully aware of the policy and consequences of his refusal to take the test, and company practice indicated his job would not have been in jeopardy.

Employers’ options

The saying “Being forewarned is being forearmed” should be the rallying cry for employers.

Even though recreational use is still illegal, it is exceedingly difficult to terminate a marijuana user for cause. So what is an employer going to do when marijuana use doesn’t have the stigma of criminality?

Anticipation. Employers need to review their workplaces and identify situations or areas where impairment would be either problematic or dangerous. The legal regime currently provides protections to employees even in workplaces that are highly safety sensitive.

There are cases that support the proposition that in the workplace, random drug or alcohol testing is not allowed in non-hazardous environments even where actual impairment exists. Termination for cause in these instances appears to require progressive discipline first.

In hazardous environments, unless an employer can establish that the job site is safety sensitive and there is at least a general issue of drug use and impairment at work, the imposition of random testing and summary termination is problematic.

Preparation. Even where safety is an issue, policies and procedures must be created or enhanced to deal with dope-induced impairment. Behaviours that will not be tolerated need to be listed. Clear disciplinary procedures need to be identified. By doing so, in the absence of situations where cause might exist, an employer may take preventative and remedial action, such as suspension or progressive discipline.

Most decisions have been in the unionized environment. They indicate that the more forgiving and supportive a drug policy is, the more likely it is that discipline and intrusive testing will be accepted. For instance, zero tolerance policies have been dealt with more harshly by arbitrators than those that offer other options before discipline is imposed.

Education. All staff must be kept advised of the development or modification of any policy and they should be aware of its contents. This can be done by means of general meeting or information bulletins on internal websites. Employers must keep on top of the inevitable legal changes that will occur as the legal landscape evolves.

Failure to do so will be costly, particularly if a policy or procedure is inadequate or wrong.

The road ahead will be bumpy. If companies carefully develop a road map, there will be fewer blind alleys and detours on the journey for employers and human resource professionals to negotiate.

Shelley Brown is an employment lawyer at Steinberg, Title, Hope and Israel in Toronto. He can be reached at sbrown@sthilaw.com or (416) 225-2777, ext. 231.

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