Cannabis in the workplace: zero tolerance

BACKGROUND

This is the second of a two-part series. The first part, “Cannabis in the workplace,” appeared in the Feb. 12, 2020 issue of Canadian Employment Law Today and discussed the legalization of cannabis in Canada and key elements of effective drug and alcohol policies. In this issue, Busayo Faderin turns her attention to zero-tolerance policies and the duty to accommodate.

There are various circumstances where drug or alcohol use by an employee, including cannabis in the workplace, may be grounds for discipline, including where:

• Cannabis affects the employee’s ability to perform core job functions, including safety standards, work attendance and productivity

• Cannabis is in violation of a reasonable workplace prohibition on use or possession of drugs or alcohol

• Cannabis has a negative impact on the employer, including the employer’s reputation, which may apply in circumstances where an employee is off duty.

Zero-tolerance policies that include cannabis

Depending on the nature of the workplace, organizations will have to decide the level of restriction in their drugs and alcohol policy, which can range from zero tolerance of cannabis in the workplace to a more nuanced approach that considers the impact to the employee’s performance.

The zero-tolerance approach is more commonly found in safety-sensitive environments. In Labourers’ International Union of North America, Local 506 v. Comstock Canada Ltd., the Ontario Labour Relations Board upheld the validity of a zero-tolerance policy at a nuclear generating facility. Under the policy, employees found in possession of drugs or alcohol would be subject to immediate discharge.

A zero-tolerance policy is a complete prohibition on any consumption of drugs (including cannabis) or alcohol regardless of the degree of impairment. Typically, these types of policies have a strict consequence of dismissal for just cause should an employee be found to have attended work under the influence of alcohol or drugs. Employers ought to be cautious with this approach to ensure the policy does not inadvertently discriminate against employees that require a workplace accommodation due to disability. A policy that is based on impairment or impact may have several levels of discipline built in up to and including termination for cause.

For example, according to a Feb. 1, 2019 CBC News article, some Ontario rail companies have taken a zero-tolerance approach to cannabis consumption in the unionized workplace after legalization: GO Train drivers in southern Ontario are forbidden from ever consuming cannabis; VIA Rail requires employees with safety-sensitive or safety-critical jobs to divulge if they’ve consumed “mood-altering substances” within eight hours of the start of their workday; and Ontario Northland has a zero-tolerance policy for bus drivers, train operators and other employees under the influence of drugs or alcohol on their property, facilities, using their equipment or vehicles.

Zero-tolerance policies in the workplace are more likely to be enforceable provided two conditions are met: They have been clearly communicated to the employee and they are consistently enforced.

Clear communication in the workplace

In Volchoff v. Wright Auto Sales Inc., the court rejected the employer’s attempt to rely on a zero-tolerance policy as a basis for dismissing an employee for just cause. The employer alleged that the employee violated the zero-tolerance alcohol policy by consuming a glass of wine at lunch. However, the policy had not been communicated to him before he was hired and no consideration had been offered to him in exchange for the policy when the employer sought to introduce it verbally later in his employment. The employee had just been told at the time that he could not be impaired by alcohol while at work. He was not told he could not continue to have a glass of wine at lunch anymore as he had been doing for years. It was not until after his termination that the employer updated the employee handbook to include the policy.

The Volchoff case is instructive on the need for drug and alcohol policies to be clearly communicated to employees and for disciplinary warnings to be set out in advance. If an employee is engaging in behaviour contrary to the policy, they should be advised that continued violations could put their job in jeopardy.

Consistent enforcement in the workplace

Equally important as having a clearly communicated policy is consistently enforcing it. In Coupe v. Malone’s Restaurant Ltd., the B.C. Supreme Court found that the zero-tolerance no-drinking policy was not enforced strictly or consistently as a manager had purchased drinks for staff on the job. A zero-tolerance policy cannot be expected to be enforced when it is being applied flexibly and discretionarily.

Lastly, employers should be aware of the potential difficulty of enforcing zero-tolerance policies that apply to workplace impairment as opposed to use of a substance at work. Proving that an employee is impaired or unfit to work due to the effects of a substance such as cannabis in the workplace may be difficult unless a drug or alcohol test is administered. Even then, since traces of cannabis can linger in the body for several days after use, such a test is not a reliable indicator of impairment from cannabis in the workplace.

Duty to accommodate employees who use cannabis

Under federal and provincial human rights legislation, an employer has a duty to accommodate an employee with a disability to the point of undue hardship. In determining whether there is an obligation to accommodate cannabis use in the workplace, the question is two-fold: Is the cannabis use for a medical reason or is it related to a cannabis addiction? Recreational cannabis use on its own would not trigger the duty to accommodate.

An employer may prohibit impairment at work from cannabis use that is related to a disability if it would jeopardize health and safety or interfere with the performance of essential job duties, as indicated in the Ontario Human Rights Commission’s “Policy statement on cannabis and the Human Rights Code” published online in July 2018. With respect to implementing accommodations, it is a process for both the employee and the employer to participate to determine appropriate supports. As a best practice, employers should ensure to maintain an up-to-date accommodation policy that explains the process of accommodation in the workplace.

The duty to inquire

In some situations, it may be up to the employer to initiate the conversation regarding accommodation where it has reason to believe a disability may be affecting an employee’s ability to perform. This is the duty to inquire. For instance, if an employer suspects an employee may be in violation of a drug or alcohol workplace policy and the use may be due to addiction or other disability, the employer should ask the employee for more information prior to taking any disciplinary action.

In Kerr v. Boehringer Ingelheim (Canada) (No. 4), the B.C. Human Rights Tribunal explained the duty quite clearly: “There is no question that an employee may need to provide medical information to the employer in order for that employee to be accommodated. However, the employer cannot just wait until that information is provided before taking any other steps, as this would always place the burden on the employee.”

Employers should seek to be proactive in these circumstances, which may require some further education and training for management employees who are tasked with the responsibility of enforcing the policies.

The legalization of cannabis is still quite new and organizations and employees are adjusting to the new regime alike. With that adjustment should come the understanding that attitudes regarding its acceptance differ widely and employers should be advised to evaluate the breadth of their drug policies based on the needs of the work environment and not based on personal convictions or biases regarding its appropriateness.

When it comes to discipline for off-duty conduct related to cannabis use, it is even more critical to ensure decisions are being guided by clear policy because discipline would only be warranted in situations where there is a reputational harm to the employer or the conduct affects the employee’s ability to perform their job, such as due to a loss of professional designations, licences or certifications. As a final reminder, the discipline should always be proportionate to the conduct.

For more information, see:

• Labourers’ International Union of North America, Local 506 v. Comstock Canada Ltd., 2004 CanLII 28097 (Ont. Lab. Rel. Bd.).

• Volchoff v. Wright Auto Sales Inc., 2015 ONSC 8029 (Ont. S.C.J.).

• Coupe v. Malone’s Restaurant Ltd., 2006 BCSC 1350 (B.C. S.C.).

• Kerr v. Boehringer Ingelheim (Canada) (No. 4), 2009 BCHRT 196 (B.C. Human Rights Trib.).

Busayo Faderin is an associate lawyer at Monkhouse Law where she practices employment, human rights and disability insurance law. Faderin can be reached at [email protected].