Safety First, Cannabis Second

Recreational cannabis may be legalized but its use is subject to strict employment rules

The legalization of recreational cannabis in Canada heralds a new era for employers, who must now deal with the potential fallout of the drug in their workplaces.

Legalizing recreational marijuana use “is not a licence for impairment or inappropriate conduct in the workplace,” says Damian Rigolo, an employment lawyer at Osler, Hoskin & Harcourt LLP in Toronto. Just as organizations don’t tolerate drinking alcohol or smoking cigarettes in the workplace, he says, nor are they obliged to tolerate recreational marijuana use. He advises supervisors to handle anyone who shows up impaired by cannabis in the same way they would anyone who shows up impaired by alcohol, noting that while it is not criminal conduct, “bad behaviour can still very well be disciplinable conduct in the workplace, up to and including termination of employment.”

But do Canadian companies or organizations have the right to limit employees’ use of marijuana when they are off the clock? What about those companies that employ people in safety-sensitive jobs? For them in particular, monitoring employee impairment is a risk-management issue.

Canadian employers are not legally permitted to perform random drug or alcohol testing unless there is evidence of widespread abuse in the workplace, as established in a landmark 2013 6-3 decision from the Supreme Court of Canada. In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., the majority, in recognizing the privacy rights of employees, held that an employer cannot impose random alcohol testing on unionized employees unless it can show a culture of substance abuse in the workplace. Even a safety-sensitive workplace does not justify random testing with disciplinary consequences, the court decided. And it is widely assumed that the recreational use of cannabis, now legal, will be treated the same way.

The Alberta Court of Appeal broadened the scope to include non-unionized workplaces in Suncor Energy Inc. v. Unifor Local 707A, a 2017 challenge mounted to the Irving decision. The Supreme Court of Canada declined to hear an appeal from Suncor.

The bottom line is that it’s close to impossible for Canadian employers to do random drug testing.

David Shapiro, Air Canada’s senior vice-president and chief legal officer based in Montreal, says while Irving remains “the law of the land and constrains our ability to conduct random testing,” the airline is keeping “a close eye” on tribunals that are starting to question that approach and on leading cases such as Suncor.

Airlines including Air Canada and WestJet have prohibited cannabis use entirely for employees in safety-critical positions such as pilots and flight attendants. Via Rail Canada’s alcohol and drug policy specifies a “zero tolerance environment” for impairment in the workplace that already covers mood-altering substances including medication. And Canadian National Railway’s employee policy states upfront a “zero tolerance for impairment in the workplace.”

Shapiro believes that for safety-critical companies, “a more permissive regime for random testing would undoubtedly be helpful and is warranted.” In federally regulated sectors such as air travel, he says, it boils down to the political will to do so.

His hope is that Canadian lawmakers and tribunals will learn from the less restrictive US approach to random testing in safety-sensitive environments. “Given the gravity of consequences of impairment in our industry, overly tight constraints on random testing isn’t helpful and, I suggest, not the pragmatic balance that is required where the impact on safety is critical.”

Would he sleep better at night were the airline permitted to spot-drug-test its pilots and other safety-sensitive employees?

“Yes, absolutely,” Shapiro says. “Random testing is an avenue that would contribute to better monitoring in safety sensitive roles. We are still hoping that the federal government will provide legislative authority to do so, as we have requested, especially in light of the legalization” of recreational cannabis use.

Police officers and doctors can also be called on to make decisions in split-second life-or-death situations, so cognitive impairment may lead to disastrous consequences.

Law enforcement agencies have taken varied approaches to drug testing.

The Royal Canadian Mounted Police says any officer in “operations or operational support” must abstain from using recreational cannabis for 28 days prior to reporting to work. Since its policy notes that members, especially in rural communities, can be called up for duty “at any time,” a 28-day buffer would seem to amount to a complete ban on recreational cannabis use.

The Toronto police force is also barring officers from using recreational pot within 28 days of reporting for active duty. The city’s largest police union calls it an “ill-contrived, arbitrary” policy.

The Calgary and Edmonton police have gone a step further and banned recreational consumption of pot entirely, although in Calgary, at least, this is being grieved by the union, which says the policy “exceeds management rights.”

The Montréal, Ottawa and Vancouver police services allow their officers to use recreational cannabis off-duty, provided they show up “fit for duty.”

A momentary loss of concentration by an office worker won’t likely carry the same potential risks, and so in an office environment finding the right balance between workplace obligations and employees’ private lives can be murkier.

“An employer generally cannot dictate what an employee does in their personal time,” says Jillian Houlihan, a partner in the Halifax office of Pink Larkin, an employee-side labour and employment firm. “The real question is whether an employer can establish its business interests are potentially harmed by what the employee is doing in his or her personal life.

“In the case of cannabis, what you’re looking at it is whether the employee is impaired at the time they’re coming in to work,” Houlihan says. “That’s a difficult question answer. There are no clear tests in terms of establishing impairment in the workplace.”

Health Canada’s guidelines state that a person who uses cannabis can expect to experience its effects for up to 24 hours, she says, “but we know under certain circumstances a person can expect to experience the effects for more than 24 hours. But that doesn’t necessarily mean they’re impaired.”

The effects of cannabis depend on the person, how often they use cannabis (affecting their tolerance), and the strain of marijuana, “so it can be difficult to say whether a person using cannabis in their personal life is impaired going into work after doing so.”

Yet while there may not be life-or-death consequences of impairment in non-safety-sensitive industries, there are still consequences.

Take Deloitte Canada, which employs about 10,000 people and can be found working on some very large financial advisory, tax or consulting files. Impairment leading to a mistake could pose grave reputational risk.

Nicole Broley, Deloitte's Assistant General Counsel who is responsible for risk and litigation management, among other areas, says her company has simply added recreational cannabis to its existing drug and alcohol policy — an approach many non-safety-sensitive corporations are using.

“We prohibit the use of cannabis in any kind if work function, at work, at client sites,” she says. “If you’re engaged in work for Deloitte, you’re prohibited from using cannabis.”

Deloitte Canada doesn’t police employees’ off-work recreational drug use, she says, “but we are saying that to the extent you’re travelling for work, at work-related courses, at client sites or anything that could be considered part of your work, you’re prohibited from using it unless there’s a medical accommodation required.”

Deloitte works on many of the top deals in the country, and its reputation rests on its advice. Like Air Canada’s Shapiro, Broley considers the inability to identify marijuana impairment in the workplace with spot testing “a very valid concern.”

Enforcement of policy can be difficult in broader environments. The University of Calgary, for example, has completely banned the use of recreational cannabis on campus. Asked how that’s enforced, Lorian Hardcastle, an assistant professor in the University of Calgary’s law school says, “it’s not, really.” Even if a university official catches someone regularly smoking pot on campus and calls the police, the person would face just a ticket.

Hardcastle, who also has a joint appointment with the university’s school of medicine, says that “we’ve been dealing … for years” in regulating impairment among doctors and other heath-care professionals. “Drug addiction among doctors generally is certainly high, but I don’t thing there’s a dramatically high rate of people being injured by doctors coming to work intoxicated or impaired on legal drugs, so I don’t think we need to completely ban it.”

For a company grappling with a policy, what constitutes best practice?

Pink Larkin’s Houlihan says it is as simple as having a policy, communicating it to employees, and then enforcing it. Her firms is advising those organizations with unionized workers to involve the union before any new policy is finalized.

“In a lot of cases where the employers are being reasonable, they’re reaching agreements. Where they’re running into problems is where employers are being over-reaching, and trying to establish policies that try and govern employees’ time away from work where there’s no clear nexus with their employment.”

Deloitte’s Broley believes that in five years from now there will be more effective testing devices and the effects of cannabis will be much better understood — which means marijuana impairment policies will likely become more sophisticated.

“Probably we’re all going to be far better educated.”

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