'In a safety-sensitive environment, you can't test positive': lawyer
An Alberta court has upheld the firing of a long-term worker who refused to participate in a substance abuse assessment following a positive post-incident drug test.
“In the case of a drug and alcohol policy, the employer is trying to ensure workplace safety,” says Allie Laurent, a labour and employment lawyer with McLennan Ross in Calgary, who was counsel for the employer in the case.
“This policy was designed to ensure that there aren’t unknown risks onsite, and cannabis is a difficult substance because it can remain present in an individual for so long - that's why you have to develop your drug and alcohol policy with a precautionary approach to require that in a safety-sensitive environment, you can't test positive.”
The worker was hired by Lafarge Canada, a manufacturer of cement for the construction industry based in Calgary, in 1981. He eventually became a site superintendent at a construction project. The worker’s duties included overseeing workers and supervising infrastructure projects. He was also responsible for site safety for workers and visitors.
Lafarge had five health and safety rules, with one of them being “I do not work under the influence of alcohol or drugs.” The worker understood these rules were a condition of employment.
Drug and alcohol policy
Lafarge adopted a drug and alcohol policy in 2009 that required employees to be “fit for duty at all times while at work.” The policy prohibited reporting for work unfit for duty “due to the consumption or use of drugs, alcohol or medications.” Any employees who used prescribed medical marijuana would be offered accommodation.
The policy also outlined that drug and alcohol testing would be done after a workplace incident if:
- the test was intended to eliminate drug or alcohol use as a contributing cause
- the employee’s explanation wasn’t reasonable
- there was evidence that the employee’s omissions or actions contributed to the incident
- there was a fatality, critical incident, injury, property damage, environmental damage, or a near miss.
The worker was trained on the policy annually and he confirmed that he had read it and understood it. He was also responsible for regularly training other employees on the policy as part of the site orientation process.
On June 2, 2022, the worker smoked a marijuana joint at home. He used marijuana for pain and stress relief, although he didn’t have a medical prescription.
The next morning, the worker was driving a company vehicle on the job site and accidentally hit a mobile compactor unit. The cost of the damage was between $700 and $1,000.
Post-incident test
The worker was asked to take a post-incident drug and alcohol test. He submitted testing by a third-party provider.
An oral fluid test came back “presumed positive,” so it was sent away for lab confirmation testing. Lafarge put the worker on paid leave pending the results.
On June 9, the worker’s urine test was confirmed to be positive for THC, the psychoactive element in marijuana. The next day, the oral fluid test was also confirmed positive. Both tests revealed a level of THC over the threshold allowed by the drug and alcohol policy.
On June 14, management advised the worker that he wasn’t being terminated, but he would have to undergo a substance abuse assessment and participate in the substance abuse program (SAP) under the policy. He was told that if he had a substance abuse disorder, “an accommodation for substance abuse may be required.” If he didn’t, then the company would determine the level of discipline, up to and including dismissal, for breaching the policy. If the worker was allowed to return to work, he would have to sign a last-chance agreement requiring unannounced random drug testing for 24 months.
The worker refused to participate in the SAP or the last-chance agreement, saying that it was “offensive, unreasonable, a disproportionate invasion of my privacy.”
Termination
Lafarge terminated the worker’s employment for his refusal to participate in the SAP. The worker sued for wrongful dismissal, arguing that the policy was unreasonable and the company failed to honour the terms of his employment contract, which involved progressive discipline. He also contended that Lafarge didn’t follow the policy, as it didn’t consider if his marijuana use had a medical justification and he didn’t use the drug at work.
The worker also maintained that the policy was “a very detailed and complex document that was never explained to me in detail,” so he didn’t understand it or the consequences of a breach.
The court found the worker wasn’t credible when he said he didn’t understand the policy, as he was trained regularly on it. There was little doubt he knew the consequences of violating it, the court said.
“[The worker] had been applying this policy and training people on it, so the evidence was clear that this was a known process and he knew as soon as he got into an incident he would be tested, and he knew he was going to test positive,” says Laurent. “The jurisprudence is supportive that if an employer can demonstrate that the employee knew the outcome of their conduct and still embarked on that conduct, it's easier to make out that there was just cause because it's effectively a knowing breach.”
The court also found that the SAP wasn’t an unreasonably invasive process. It was required after a positive drug test and it was related to fitness for work, the court said. Since the worker used marijuana regularly, it was reasonable for Lafarge to ask if he had a drug dependency and whether it needed to accommodate him, the court said.
Workplace safety
The court also found that once an employee tests positive for drugs after an incident, safety outweighs employee privacy interests, as the worker had a legal and moral duty to maintain a safe workplace. The policy required Lafarge to “establish and enforce procedures to safeguard and maintain confidential information,” so there was no suggestion that the company was careless with personal information, said the court.
The worker argued that the policy was implemented after he started at Lafarge, so it constituted a change in the terms of employment without consideration. However, the court found that the worker didn’t raise any concerns for more than a decade after the policy came into effect and he was regularly trained on it, so he acquiesced to it without fresh consideration.
The court noted that the policy couldn’t allow the worker to consume marijuana before work, since there could be lingering effects that could affect his fitness for work. The testing requirements were meant to identify the presence of cannabis in a worker’s system at work, regardless of when it was consumed, the court said.
The court also found that it didn’t matter if the marijuana was used for medical reasons, as an assessment for fitness for work had to be done for safety reasons, the court said, adding that the worker didn’t follow the disclosure-of-use requirement in the policy.
The court noted that the worker wilfully refused to participate in the SAP. Since Lafarge was required by law to maintain a safe workplace, it couldn’t allow the worker to work in his safety-sensitive position without determining if he had a substance abuse disorder or cannabis in his system at work. It had no alternative but to insist compliance and, when the worker refused, it was justified in dismissing the worker, said the court, adding that had the worker co-operated, his long service and good record would have been factors in considering if lesser discipline was appropriate.
Termination only option
There was no other option for Lafarge once the worker indicated that he wasn’t prepared to go through the SAP, says Laurent.
“[The worker] just outright refused, so that put Lafarge in the awkward position of having a safety-sensitive work environment and an individual that it knew tested positive who wouldn't submit to an assessment to determine whether there was a substance abuse problem,” she says. “The reason these drug and alcohol policies have an SAP is because it's required to determine whether there’s an addiction issue, and then that can be dealt with through whatever means necessary.”
“We would be having a different conversation if this employee had gone through that process, but there's no obligation to accommodate someone who breached the policy and refuses the process,” adds Laurent.
The worker’s action was dismissed.
“The key takeaway is that employers can have strict drug and alcohol policies, provided they ensure that employees know about the policies and receive adequate training on them, and they consistently apply those policies,” says Laurent. “It’s the same rule you would have with respect to any other workplace policy - you need to ensure people know about the policy, they understand how it operates, and you enforce it.”
