Tuesday, 2 April 2019

RECREATIONAL AND MEDICAL MARIJUANA IN THE WORKPLACE



As the issues surrounding recreational marijuana and testing for impairment have increased across all unionized workplaces as a result of the new legislation, it is imperative that all unions are apprised of the general law regarding marijuana in the workplace. The following is a free memorandum* drafted by Watson Labour Lawyers to update you on the current laws surrounding this contentious issue. If you have any question regarding this topic, its applicability to your local, or any other labour issue, please don’t hesitate to contact our firm by email or the number provided in the signature line below.

Disclaimer:
The content in this handout is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Watson Labour Lawyers does not warrant or guarantee the quality, accuracy or completeness of any information contained in this handout. Additionally, ownership of this handout does not create a lawyer-client relationship.
If you would like more information, or have a specific question you would like to discuss with our Firm, please contact us by email at assistant@watsonlabourlaw.com or telephone (705) 646-5595.

Recreational & Medical Marijuana in the Workplace
Bill C-45, also known as the Cannabis Act (or An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts) came into force on October 17, 2018. This posed an interesting situation for workers and employers alike. For instance, what can workers expect of workplace policies surrounding legal, recreational use of marijuana, drug testing? As Union lawyers, we have always advocated strongly against the employer’s ability to drug test at all, in fact, we were one of the first decisions in Ontario to preclude drug testing for employees. If the parties have agreed or had an award that allows testing, as a practical matter testing for marijuana use is fairly simple, however, testing for impairment caused by marijuana is another story. 

Medical marijuana and recreational marijuana are judged on the basis of fitness for duty, particularly in safety sensitive positions. Safety Sensitive Position have been described as “One in which job performance requires the employee to be alert, physically coordinated and exercising good judgment, with a significant involvement in any part of the company’s operations where impaired job performance could affect the health, safety or security of the employee, other persons, property or environment”.

Unlike alcohol, marijuana is much more challenging to test for fitness in this context. At present, there is no reliable way to measure impairment resulting from marijuana use. It’s important to distinguish testing from impairment. It’s one thing to test positive for marijuana, it’s another thing to be impaired by it. Marijuana is fat-soluble, meaning that a user can test positive for the drug long after its effects have worn off. It’s this difficulty in adequately testing for impairment that has resulted in varied arbitral decisions in the context of medical marijuana.

What are the cases saying?

Some cases note that current testing abilities cannot adequately indicate impairment and the employees with medical marijuana prescriptions who test positive should not be dismissed solely for using marijuana, unless impairment can be demonstrated (see, for e.g.: Bombardier Transportation v. Unifor, Local 1075, 2018 CanLII 25604 (ON LA)). Since impairment cannot be determined with accuracy, this case provides an argument that an employer should not dismiss an employee on the sole basis of a positive marijuana test. Additionally, an employee’s decision to refuse a drug test is not equivalent to a positive test result as was seen in the I.U.O.E., Local 793 v. Sterling Crane2009 CarswellOnt 8416.

At least one decision has found that once an employer is aware that an employee who tested positive for marijuana has a prescription for the drug, the employer has a duty to accommodate (see: Airport Terminal Services Canadian Company v Unifor, Local 2002, 2018 CanLII 34078 (CA LA)).
Another decision has found that a prescription for marijuana may go toward triggering an employer’s duty to inquire into the need of accommodation. In Brown v Betchel Canada and HB Construction Company, 2016 BCHRT 170 (CanLII), for example, an employee on a construction site was terminated for using marijuana for which he had a prescription. The arbitrator allowed a discrimination claim, holding that it was open to the employee to establish that the employer had a duty to inquire into whether the employee had a disability that was being treated with medical marijuana before terminating the employment. In other words, the arbitrator held that the duty to inquire is triggered when there is cause to believe a disability may be contributing to poor work performance, stating:
While I agree with the Company that accommodation is a process in which both the employee and employer bear responsibilities, I cannot agree that Mr. Brown has no reasonable prospect of proving that he did disclose enough information to the Company to trigger its obligation to make meaningful inquiries into whether his use of marijuana, for which he was being terminated, was related to a disability. In particular, if supervisory personnel, camp security, the Third Party, and the Supervisor who says he met with Mr. Brown to terminate his employment all knew that he had an Authorization to Possess marijuana from the government of Canada, that may be sufficient to establish that the Company ought reasonably to have known that the medical reasons for the Authorization could be a disability
Other decisions take the view that it’s the underlying disability, and not the mere fact of having a prescription for medical marijuana that triggers the duty to accommodate (see: International Brotherhood of Electrical Workers, Local Union 1620 v Lower Churchill Transmission Construction Employers' Association Inc., 2017 CanLII 59779 (NL LA)).

Not all arbitral decisions accept that accommodation is even possible when it comes to marijuana. In the context of safety-sensitive positions, some arbitrators have found that the inability to test for impairment may pose unquantifiable and unmanageable risk and, in itself, could constitute an undue hardship on employers. This hardship could justify keeping employees out of safety-sensitive positions:

The safety hazard that would be introduced into the workplace here by residual impairment arising from the grievor’s daily evening use of cannabis products could not be ameliorated by remedial or monitoring processes. Consequently, undue hardship, in terms of unacceptable increased safety risk, would result to the employer if it put the grievor to work. As previously stated, if the employer cannot measure impairment, it cannot manage risk.

(see: Re Lower Churchill Transmission Construction Employers Assn. Inc. and IBEW, Local 1620 (Tizzard) 2018 Carswell Nfld 198).

Even though an employee may have a prescription for marijuana, there is still a positive duty on the employee to seek accommodation if required. The Ontario Human Rights Tribunal has found that where an employee has a medical marijuana prescription and yet fails to seek accommodation, an employer is unlikely to be found to have discriminated if, upon discovering the employee for using marijuana at work, it does not accommodate and proceeds to terminate the employee (see: JA v L&L Painting and Decorating Ltd., 2018 HRTO 238 (CanLII)).

But informing an employer of a marijuana prescription and the need for accommodation does not guarantee job security. Where the employer is aware of a medical marijuana prescription and seeks to accommodate the employee, there are limits. In Kindersley (Town) v Canadian Union of Public Employees, Local 2740, 2018 CanLII 35597 (SK LA), for example, an employee had been prescribed to vape marijuana. The prescription enabled him to vape during work hours, provided that he was not to use a “Zamboni, forklift or lawn mower for 20-30 minutes after vaping.” The employer accommodated the employee, moving him into a position where he was permitted to vape three times per day. However, when the employee was found to have vaped while driving a company vehicle, the employer terminated his employment. The union grieved and, though the employer could not prove impairment, the Saskatchewan arbitration board upheld the dismissal on the basis that vaping while driving a company vehicle violated the employer’s vehicle use policy and was a breach of the conditions of his accommodation. 

In another decision, an employee was dismissed for buying marijuana while on duty and was not entitled to accommodation, given that he failed to demonstrate addiction (see: Ottawa Carleton Public Employees Union (CUPE, Local 503) v. Ottawa (City), 2013 ONSC 4072).
Terra Nova Employers' Organization v Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7 (CanLII) provides a cautionary statement that could apply to both prescription marijuana users, and since legalization, to recreational users. In that case an oilrig worker was found to have a small amount of marijuana in his pocket. The employee was not using the marijuana at work. He simply forgot there was some marijuana in his pocket. Nevertheless, the employer terminated him on the basis that there was a strict liability policy with respect to drugs in the workplace. Under the policy, the employee would be guilty of misconduct unless they could establish they’d taken all reasonable steps to comply with the policy. In this case, the Court of Appeal found that the employee had not taken all reasonable steps. The dismissal was upheld.

Testing generally

The law surrounding drug testing is still governed by Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (CanLII), in which the Supreme Court offered guidance regarding testing in the workplace. The court held that a unilaterally imposed policy of mandatory, random and unannounced testing for all employees in a dangerous workplace has been overwhelmingly rejected by arbitrators as an unjustified affront to the dignity and privacy of employees unless there is reasonable cause, such as a general problem of substance abuse in the workplace. Note that the court went on to state that even when such a workplace exists, employers are required to exhaust less intrusive measures before moving to random testing. Such measures include having reasonable cause to test, post-accident testing, etc.

In the decision of Weyerhaeuser Co. and C.E.P., Local 447, 2012, arbitrator Francis outlined the conditions to be considered for a post-incident drug/alcohol test to be reasonable: 
  1. There must be a connection between the employee’s area of responsibility and the accident.
  2. It is necessary to investigate whether the actions or omissions of the employee contributed to or caused the accident
  3. The test must assist in the investigation, at the minimum, by negating impairment as a possible cause or contributing factor
  4. The incident must be a significant event
  5. The investigation must incorporate the employee’s explanation of the incident
  6. The decision to test must be based on a connection between the incident and the employee to be test
Lastly, even if these conditions are fulfilled, the onus is still on the employer to balance its interest in investigating the incident against the privacy and bodily integrity interest of the employee. 

In a recent decision dealing with random testing, the arbitrator in United Steelworkers, Locals 8884 and 9346 v Teck Coal Ltd, 2018 CanLII 2386 (BCLA) struck down the provisions of a drug and alcohol policy on the grounds that it was an intrusion on employee privacy which was not justified by evidence of a workplace problem with drugs, alcohol or general safety to warrant random testing.

Note that despite the case law noted above, it has always been our firms position that drug/alcohol testing in the workplace is inappropriate and an extreme breach of privacy. 

What about disclosure: can an employee be required to disclose off-duty marijuana use?
In the unfortunate decision of Stewart v Elk Valley Coal Corp., 2017 SCC 30 (CanLII), the Supreme Court ruled that an employer was entitled to enforce a workplace policy requiring employees to disclose an addiction. In this case, a drug-addicted employee failed to disclose his drug use and was terminated. The Court found that this was not an act of discrimination but rather a termination based on a breach of company policy requiring early disclosure of addiction.
This is a contentious issue. Our firm has been successful in our position that an employee is not required to disclose an addiction. It is common practice for the addition to be hidden until the employee is terminated. Many people don’t realize they have an addiction until they hit the point that they need to see a specialist and receive a diagnosis. 
This raises issues for Unions. What happens if the Union has been put on notice of an employee’s addiction and they fail to act, for example, if an employee notifies the Union that they have are addicted to alcohol and they are employed in a safety sensitive capacity, what is the Union’s duty? With legalization of marijuana the Union is balancing priority to protect its members privacy from inappropriate interference (testing) with its obligation to ensure a safe work environment. If the Union is aware of a dangerous work environment and fails to act, there could be consequences under the Occupational Health and Safety Act and/or the Criminal Code. 
Pulling it all Together
What does this mean for workers with respect to medical and recreational marijuana? Well, as the above cases demonstrate it’s challenging to give a definitive sense of how these drug cases will be treated in the workplace. Given the inadequacy of methods of testing for impairment, it’s expected that there will be a number of cases which will grapple with this problem. Unions will have to decide if they want to challenge the policy in a vacuum, or as we would normally advise, wait for a sympathetic grievor who has been impacted by the policy.
The issues regarding legalization are still new and the law surrounding its impact is volatile. Arbitrators are human, and with that comes personal bias and preference. It will take some time for the law to settle. Please protect yourself and your Union and get advice as the case law develops.
Questions to Consider

  • What is your policy for drugs and alcohol? Does your policy address impairment or any trace?

  • Is the member being tested for drugs and alcohol in a safety sensitive position? Who says so? Was this analysis carried out properly? Can the employer deem the entire workplace safety sensitive?

  • Does the employer have reasonable cause for a drug AND alcohol test if the employee only showed signs of alcohol intoxication? Does work now grieve later apply in such a situation?

  • Can the employer test for alcohol if the employee smells like marijuana? Is the smell of marijuana enough to test for impairment?

  • Can the employer always test for impairment after a work accident? Can they test for drug and alcohol? Do they need reasonable cause?

  • When do management rights override privacy rights?