There is no longer doubt that a pre-eminent election promise of the Liberal government will come to pass; that of the legalization of recreational marijuana. The target date is Canada Day, 2018. This new regime will bring with it a host of challenges for employers that will require action in the coming months to ensure that policies, procedures and practices are relevant to workplace realities and responsive to legitimate concerns regarding job performance and safety. Those employers who function under the illusion that they can continue without written policies or will be able to rely upon current protocols without legal review may be in for a rude awakening.
There are two primary considerations for employers: establishing impairment and the absence of equipment similar to a breathalyzer that indicates actual impairment when the drug test is administered. As can be seen from the recent decision in Amalgamated Transit Union v. TTC (motion for interlocutory injunction), a chasm exists between management and labour in relation to the rights of employer and employee regarding this issue. The same holds true for non-unionized workplaces.
My time as director of human resources at The Prudential allowed me to understand these two distinct perspectives. Both sides are often either unaware of or biased against the legitimate interests of the other. This is evident in the juridical debate that is currently taking place on the advent of legalized recreational cannabis. While each side recognizes the safety implications of cannabis impairment, each also stands on opposite sides of the spectrum as to the mechanisms available to legitimately minimize the risks.
The starting point of the debate emanates from the decision in Entrop v. Imperial Oil, which, in essence, stands for the proposition that actual impairment on the job is the necessary basis for the approbation of remedial action by the employer. This represents a major problem. While a breathalyzer test is recognized as a valid indicator of alcohol impairment at the time the test is administered, nothing currently matches its efficacy in regard to cannabis. THC, the main psychotropic ingredient in cannabis, builds up in body tissue. Thus, a positive blood, urine or saliva test may indicate the existence and level of THC in the body and, therefore, that the employee is a user. It doesn’t necessarily establish actual impairment.
This limitation is not problematic for employers in regard to those jobs that are not safety sensitive. Progressive discipline, appropriately applied, will be adequate to deal with the situation and allow for termination if necessary. However, where safety is an issue that can result in catastrophic injury or death, the luxury of time and procedure may not exist.
The decisions rendered by adjudicative regimes that review employers’ disciplinary and administrative actions pursuant to their drug and alcohol policies (such as tribunals, arbitration boards and civil courts) vary to some degree in approach and outcome. However, considerations upon which the decisions are based are fairly uniform. Cognizant of the potential for catastrophic accidents in safety-sensitive positions, they strive to strike a balance between safety concerns, the difficulty of establishing actual impairment and the protection of privacy.
Thus, policies that, for safety-sensitive jobs, impose self-identification, rehabilitation and random testing (following a significant or a general series of events) are increasingly being upheld despite their intrusiveness. This is much more likely to occur if discipline results not from a positive drug test but due to the refusal by the employee to adhere to the policy requirements.
Employers should note that decisions that uphold terminations resulting from failure to self-identify or refusal to take a drug test following an occurrence are becoming more common.
While not guaranteed panaceas, policies and procedures should reflect these adjudicative tendencies.
Conventional wisdom postulates a power disparity in favour of employers. However, due to the dangers of impairment regarding cannabis in the workplace, that hypothesis may be moot. Until a test exists that is comparable to the breathalyzer, remedial action will be open to challenge. It is, therefore, appropriate, if not imperative, for employers, working with legal counsel, to have the most responsive policies that the juridical environment allows.
Shelley Brown is an employment lawyer and senior associate at Steinberg Title Hope and Israel LLP in Toronto. Before joining the firm, in addition to working as in-house counsel for Prudential Insurance Company of America, he was the director of human resources.