Employment lawyers have said that recent Supreme Court of Canada decisions on drug testing provide important guidance and can be used to inform their clients when they are developing policies.
Instead, they found the employee’s termination was because of a breach of policy that required employees to disclose any dependence or addiction issues before any drug-related incident occurred and that the Alberta Human Rights Tribunal had not established that this was a case of workplace disability discrimination.
“The legalization of recreational cannabis is definitely an area that has been getting a lot of attention, and we’re getting a lot of questions asking around this,” says Daryl Cukierman, partner with Blake Cassels & Graydon LLP in Toronto.
Cukierman says that, from the employer perspective, there is a need to be clear about employer expectations around the use of legalized cannabis, particularly around the relationship between cannabis use and the workplace.
He says that while employees’ expectations about cannabis use may change, employers still have the responsibility to provide a safe workplace.
“Lawyers should be thinking about drafting workplace policies banning the use of marijuana at work unless it was prescribed by a doctor,” says Jeff Dutton of Dutton Employment Law in Toronto, who is also a former prosecutor for the Ontario Ministry of Labour.
Dutton says that even when cannabis is fully legalized, employers don’t have to put up with employees smoking cannabis at work in all circumstances.
However, he says, if an employee has a disability that requires a prescription for medical cannabis, the employer has to accommodate that disability up to undue hardship. Dutton says that undue hardship will be triggered more readily in workplaces where there are health and safety issues, such as a mine or construction site, compared with office workers.
“Even with respect to your typical office worker, and they’ve been prescribed medical marijuana, an employer doesn’t want them coming in stoned per se,” says Dutton. Employers should consider following in the footsteps of the Toronto Transit Commission and consider drafting a fitness for work policy, he says.
Such a policy lays out how employees can use cannabis but can’t be “stoned.”
For sites such as mines, Dutton says, employers should not allow any use of marijuana, and if sued, they should go to court in order to claim undue hardship. Employers that require drug testing should have a policy that has been drafted by an employment lawyer or a health and safety lawyer, and if the workplace has safety concerns and if there is a history of drug abuse at the site, they should go ahead with testing, Dutton says. Anyone found to be using could be sent on leave for rehabilitation, he says.
Dutton adds that existing policies may need to be updated if they simply specify that “narcotics” or “illegal drugs” are not allowed, so as to ensure that they properly capture legal recreational cannabis.
“The Supreme Court has added reason to the regulation of workplaces, especially with respect to workplaces where safety is an issue,” says Dutton.
Cukierman says he has been advising clients to ensure there is no unintentional loophole in the language around cannabis use in their existing drug policies. With regard to the SCC decision in Elk Valley, Dutton says, the mere presence of addiction should not mean an employer can’t take action.
Richard Charney, global head of employment and labour with Norton Rose Fulbright Canada LLP in Toronto, says that where there is a claim that cannabis use is related to an addiction, there is the potential to raise human rights issues, but it will be a high bar.
“The whole rationale for legalizing marijuana in Canada is that, in contrast to some other drugs, it’s not physically addictive,” says Charney. “Perhaps the medical jury is still out, but for anyone to rely on that argument, they’re going to really have to prove their point with great difficulty.”
Charney adds that with regard to Elk Valley, it’s important to note that the Supreme Court found that the employee had the capacity to either stop using drugs or to disclose per the policy.
“It’s a fascinating but utterly commonsensical assertion because society frowns upon impaired driving,” says Charney. “The court has recognized that ability to make choices, and there’s no reason to believe that the addiction diminishes his ability to comply with [the] terms of the policy.”
Charney says the lesson out of Elk Valley for employers is that the drafting of workplace policies is critically important and that the focus on the letter of termination showed that it was very carefully drafted to note that termination was for failure to follow policy rather than the fact of addiction.
“Lawyers who represent employers ought to keep that in mind,” says Charney. “Don’t allow human resources people to put together a template.”
Dutton says that for clients who are looking to draft policies around either banning the use of cannabis or for drug testing, those policies need to be properly shared with the staff by means of a meeting. Employers also need to ensure that the policies are sent by mass email to the entire company, as well as posted beside the Employment Standards Act poster that is mandated to be in the workplace, he adds.
“That way, the employer can make a credible argument later, if they’re sued, that the employee ought to have known about the policy,” says Dutton.
He says that for those employees who break the policies but who aren’t in a safety-sensitive environment, they should be written up but not fired for just cause unless it is a repeat violation.
“The law on marijuana at work is going to be tested and the courts will look at the law of drunkenness at work,” says Dutton. “The law will be analogous to what happens when somebody has a few beers at lunch, and there’s a number of cases that say, generally speaking, it’s not just cause.”
Dutton notes that while this doesn’t apply to airline pilots, the law says that there needs to be intoxication and that proving that with cannabis would likely involve using the law around roadside testing.
Cukierman agrees that analogies to alcohol policies can be drawn and says that similar considerations can be drawn with recreational cannabis use.