GPS for the new terrain ahead as marijuana legalization approaches
As the inevitable legalization of marijuana takes another step forward with the impending release of the report of the federal task force, recreational use of marijuana will continue to grow despite its current status as an illegal drug. The anticipated date is sometimes in the spring or summer of 2017.
Employment lawyer Shelley Brown analyzes the case law dealing with employee drug use and intoxication to try to determine what the new reality could bring for employers.
Legalization of marijuana — whether you agree with it or not — it 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, 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.
The road ahead is largely unmapped. There will be many potholes, detours and speed bumps along the way. 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 in order 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 on recreational use
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 to an employer unless it could be proven that 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 marijuana 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 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, which is at issue. If an employee lights up at lunch time, but is quite 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.
It’s no surprise that 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 employee in a safety sensitive industry. As operations manager, he was responsible for the functioning of a 600-pound boiler, five ethylene-cracking furnaces and a turbine generator. At trial, Walker admitted that his worst-case scenario would be a negligently-caused fire resulting in a catastrophic, fatal explosion.
In 1989, Imperial Oil implemented a stringent drug and alcohol policy, imported into Canada. 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. For various reasons, 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 which were undertaken were part of a scheduled work-related medical examination — it could not be said they were random. The court also held that the tests indicated excessive alcohol levels in Walker’s body, which identified actual impairment and not just usage.
Could Walker be applied to marijuana use in the workplace?
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 build up and be detected in the body long after the physical effects of marijuana consumption have ended. Thus, although testing might disclose elevated levels of THC, its presence doesn’t necessarily connote impairment. For instance, in Colorado, the legal limit for THC presence in the blood is 5 nanograms of THC per milliliter of blood. However, this reading can occur in recreational users days after the last consumption of THC. 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.
The decision in Stone v. SDS Kerr Beavers Dental relates to alcohol consumption and clearly establishes the distinction in Entrop. Norman Stone was terminated for cause for a variety of performance-related issues, including the consumption of alcohol at work. As in Walker, a written policy existed that prohibited each of the activities for which he was fired. The policy specifically mentioned that termination for cause could occur for major offences — including substance abuse on company premises. The manual went on to state, however: “The intent should be to correct a problem rather than punish an employee.” It also provided a detailed description of the levels of the progressive disciplinary process that were to be imposed before a termination for cause could occur. Stone did not work in a safety-sensitive position and, although it was clear he had consumed alcohol at work on several occasions, he had never been warned and the disciplinary process hadn’t been implemented.
The court found in favour of Stone on all issues, based primarily on the employer’s failure to warn Stone, let alone formally implement the progressive discipline process. The outcome might have been different, and more in line with Walker, had Stone been working in a safety-sensitive workplace.
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 other 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 enroll the employee in a rehabilitation program if it was determined the employee was addicted. Failure of the employee 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. He was also purposely vague and sarcastic as to the actual cause of the accident.
Mielke was asked to take the drug and alcohol test. He initially refused, indicating that 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 that his job would not have been in jeopardy.
Employers’ options: Anticipation, preparation and education
The saying “being forewarned is being forearmed” should be the rallying cry for employers. The examples above represent the tip of the iceberg, but they also provide insight as to the tendencies of courts and tribunals on these issues which will arise in the workplace when the Criminal Code is amended.
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 even 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. This includes industries involving transportation or employing heavy machinery, hazardous materials or chemicals.
There are cases which 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. Tests which provide evidence of drug usage, but don’t establish actual impairment, often don’t support termination for cause. Employers need to be aware of these issues and undertake appropriate reviews.
Preparation. In view of the limitations on employers, 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. Even in safety sensitive workplaces, employers should begin the work to create or strengthen infrastructures that will respond to these concerns.
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 which 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. The failure to do so will be costly, particularly if a policy or procedure is inadequate or wrong. Huge penalties or damage awards could prove catastrophic, not to mention the negative impact on a company’s reputation. Where fair and clearly worded policies exist, the courts and tribunals tend to be more disposed to render favourable decisions.
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.
For more information see:
• Suncor Energy Inc. v. Unifor, Local 707A, 2016 CarswellAlta 921 (Alta. Q.B.).
• Walker v. Imperial Oil Ltd. 1998 CarswellAlta 859 (Alta.Q.B.).
• Entrop v. Imperial Oil Limited 2000 CarswellOnt 2525 (Ont. C.A.).
• Stone v. SDS Kerr Beavers Dental 2006 CarswellOnt 3831 (Ont. S.C.J.).
• Mielke and Entrec Corp. 2015 CarswellNat 6411 (Can. Lab. Code Adj.).
