Once marijuana is legalized in Canada, employers will have to treat employee use somewhat differently — but still as an intoxicating substance
In 1972, the LeDain Commission of Inquiry into the Non-Medical Use of Drugs recommended decriminalization of marijuana possession and cultivation for personal use. More than 40 years later, Justin Trudeau’s Liberal government is poised to do just that. What does that mean for employers with concerns the drug may be more likely to infiltrate their workplaces? Employment lawyer Tim Mitchell discusses what legalization of marijuana means for the workplace.
In a throne speech in December 2015, the federal government affirmed its commitment to follow through on a campaign promise to legalize, tax and regulate non-medical access to marijuana. The Task Force on Marijuana Legalization and Regulation, created to meet with governments, experts and stakeholders, is scheduled to report its findings in November 2016. In the spring of 2017, the government intends to introduce its legislation.
The exact form that the legislation will take is not yet clear. However, in the interim, employers should be actively re-examining existing policies or planning new ones to address the altered state of affairs. The extent to which legalized marijuana will significantly affect the workplace will likely depend on how prepared an employer is for the challenges it will present.
In many respects, legalized possession and recreational use of marijuana will raise similar issues to those that employers already face in relation to recreational use of alcohol.
Like off-duty use of alcohol, off-duty recreational use of marijuana will generally be of no concern to employers unless it detrimentally affects legitimate employer interests. Both the common law and arbitral jurisprudence recognize an employer’s right to discipline an employee for off-duty conduct that is prejudicial to the employer’s business.
Like on-duty use of alcohol or reporting to work in an impaired condition, on-duty use or impairment from recreational cannabis use will raise employment issues. It has been repeatedly acknowledged in arbitral jurisprudence that employers have the right to require employees to be fit to perform the work to which they are assigned. Employees who report to work in an impaired condition may be removed from duty, disciplined or discharged as the circumstances dictate.
Employer policies that reasonably impose zero tolerance rules based on the safety-sensitive nature of the work or the workplace (such as remote oilfield camps) or that require employees to abstain from substance use for a defined period before reporting to work (such as commercial pilots) will be enforceable against recreational marijuana users in the same way that they are currently enforceable against recreational drinkers. Initially, there may be greater challenges in detecting on-the-job marijuana impairment. This inability of existing tests to do so has traditionally been an obstacle to employee drug testing. However, that may soon be a non-issue as breathalyzers that detect THC, the primary psycho-active component of marijuana, become available.
A new approach for employers
A new approach will be required where an employee claims that her cannabis use is therapeutic. Unlike alcohol, cannabis has been recognized as having medicinal properties, although its efficacy is still disputed in some quarters. Employers will be required to grapple with issues of disability discrimination unrelated to the usual substance abuse concerns in cases where employees rely on cannabis for treatment of disabilities. They will need to discern the legitimacy of employees’ claims of disability-related use and, assuming use is legitimate, they may need to obtain medical advice on the product being used and its effect on the particular employee if they have reasonable safety concerns. Determining that an employee’s cannabis use is incompatible with the employee’s position and/or the workplace without such advice is a risky course of action.
In Calgary (City) and CUPE, Local 37 (Hanmore), Re, a heavy equipment operator was restored to his safety-sensitive position and awarded several years’ lost wages, overtime and pension benefits after the majority of an arbitration board ruled that the employer had not properly investigated concerns it had about his use of medical marijuana. The decision offers some insights into the need to inquire carefully into the circumstances.
In this case, the employee had informed his immediate supervisors that he used medical marijuana for relief from pain resulting from degenerative disc disease. He was allowed to continue driving for a year and did so with no issues. He was precipitously removed from his position pending investigation when his marijuana use came to the attention of higher management. He was not treated as impaired at the time but was allowed to drive his equipment back to the yard and then to drive himself home. He was not asked to submit to drug testing. He was denied the right to return to his driving duties for some four years due to unresolved concerns over dependency and his ability to drive safely. The arbitration board found that, in pursuing its legitimate concerns, the employer had not acted reasonably. In particular, it had unduly influenced an independent medical investigation by failing to provide the examiner with any information from the employee’s doctor.
In reinstating the employee to his position, the board did not disregard the employer’s legitimate safety concerns. It required the employee to take steps to reduce the amount of medical marijuana available to him to an amount consistent with his medical needs and to submit to random substance testing and work performance monitoring in accordance with the employer’s policies. It permitted the employer to request a further independent medical examination on conditions should it continue to have concerns about dependency. In short, it encouraged the employer to react to its legitimate concerns on the basis of fact.
Existing case law also suggests that employers need not fear that the new reality will require them to relax safety standards that impose reasonable conditions on therapeutic drug use. In Lower Churchill Transmission Construction Employers' Assn. Inc. and IBEW, Local 1620 (Uprichard), Re, the employee was found to have been properly terminated for failing to reveal his possession and use of medical marijuana in contravention of a construction project’s Drug and Alcohol Standard. The Drug and Alcohol Standard required employees to “report any medication being taken… (that) may impair the employee’s ability to work safely.” The Canadian Model prohibited misuse of prescription or nonprescription drugs while at work and required workers to report to a supervisor the use of any drugs with potential unsafe side effects.
The employee’s failure to comply with this obligation justified his termination despite the lack of any evidence that the employee had been impaired at work and the fact that his possession and use of marijuana was legal. His omission had denied the employer the ability to maintain its safety standards by determining whether there was an actual adverse effect based on the level of THC in the employee’s system during his shift. Had the employee disclosed his marijuana use, the employer could have made arrangements to test him or to obtain a medical opinion on potential adverse effects.
Overall, employers need not view the spring of 2017 with trepidation. Many employers already have the tools they need to deal with what will undoubtedly be an increase of marijuana use, both medically and recreationally. Employers who have reasonable concerns as to the effect of medical marijuana on their employees’ abilities to work safely can and should seek answers to those concerns. Employers who have no existing policies on substance use or impairment in the workplace should take action now to craft such policies, including provisions encompassing all substances capable of impairing performance. Employers should recognize the need to educate employees on their concerns and expectations; to train employees and supervisors to recognize and address impairment; and to resist the temptation to treat the 1936 film Reefer Madness as the last word on the dangers of marijuana.
For more information see:
• Calgary (City) and CUPE, Local 37 (Hanmore), Re, 2015 CarswellAlta 1834 (Alta. Arb.).
• Lower Churchill Transmission Construction Employers' Assn. Inc. and IBEW, Local 1620 (Uprichard), Re, 2016 CarswellNfld 213 (N.L. Arb.).
