Recreational Cannabis in the Workplace – Lessons from Workplace Impairment Cases

June 21, 2018 | Alice M.L. Wong

Under current legislation, the production, possession and trafficking of marijuana is prohibited under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, subject to certain exemptions such as medical marijuana.

Federal Bill C-45 (also known as the Cannabis Act) is currently scheduled to come into effect in late fall 2018, making cannabis legal in Canada.  The Cannabis Act will outline a framework for regulating cannabis production, specify which aspects of cannabis regulation fall to provincial authorities, set standards for health and safety and establish criminal prohibitions.

Given the inherent dangers on construction sites, it is likely that the upcoming decriminalization of cannabis will become a source of liability and risk concern to all parties in the construction and insurance industries.

Since access to marijuana for medical purposes has been legal in Canada since 2000, it is presumed that most employers already have in place various policies dealing with prescription cannabis.  This article will focus on recreational cannabis.

Under Bill C-45, possession of 30 grams of marijuana will be permitted for individuals over 18 years of age for recreational purposes.  There is, however, no mention of intoxication at work.  As such, it will fall to individual employers to set their own policies regarding recreational cannabis use in the workplace, subject to existing applicable legislation, such as the Alberta Occupational Health and Safety Act; The Saskatchewan Employment Act and Occupational Health and Safety Regulations, 1996; the Ontario Occupational Health and Safety Act; the Manitoba Workplace Safety and Health Act; and the British Columbia Occupational Health and Safety Regulation and Workers Compensation Act.

In order to assess the limits and enforceability of such policies, existing case law on employer policies regarding non-prescription medication and alcohol may prove to be an informative comparison.

Fundamental privacy laws will likely continue to prevail in the face of Bill C-45, which will require a balancing of rights.  Employers do have the right to inquire into an employee’s absences from work; employers are not required to accept any explanation as adequate; and employers are entitled to require the employee to provide information to determine whether that absence is bona fide.  On the other hand, employers are prohibited from searching an employee or subjecting an employee to a physical examination without consent, compelling an employee to submit to a medical examination (absent a contractual obligation or statutory authority to this effect) or disciplining an employee for refusing such medical examination.[1]

Perhaps surprisingly, employees cannot be subjected to random, unannounced alcohol or drug testing. This applies even to employees who are working in safety sensitive positions.[2]  By definition, this would include construction sites where safety is, naturally, of paramount importance.  However, in certain circumstances, drug and alcohol testing can take place.  The key is to balance the privacy rights of employees with the right and responsibility of employers to maintain a safe work site for their employees, their property and in some situations, the general public.

The result of this balancing act is that an employer can implement alcohol or drug testing of its employees in certain defined situations:[3]

  1. Where the facts give the employer reasonable cause to do so, for example, after a significant workplace incident, accident or “near-miss;” or
  2. In continuing employment contracts after the employee has been found to have a problem with alcohol or drug use.[4]

Despite what may be seen as a general acceptance of drug and alcohol testing by the public, it is nevertheless important for employers to be aware of the Courts’ reluctance and inherent wariness of what has been deemed a “singular and limited exception to the right of freedom from physical intrusion to which employees are generally entitled by law.”  This dichotomy is perhaps best illustrated by the stringent conditions our Courts have imposed on employers to justify termination of employees even for blatant violations of workplace drug and alcohol policies:

  • In the 2015 case of Volchoff v. Wright Auto Sales Inc.,[5] the Court held that the employer’s termination of an employee was not justified even though the employer had a zero tolerance policy and the employee had been caught consuming alcohol at work.  The Court’s rationale in this decision was that the employer had failed to include the zero tolerance policy in its employee handbook and the situation did not involve safety standards or the operation of potentially dangerous company machinery during work hours.
  • In the 2004 case of Daley v. Depco,[6] the employer was found to be justified in firing an employee without notice for having repeatedly consumed alcohol while at work.  The Court held that the employee’s actions in an industrial setting were such a potential threat to workplace safety that they were considered to be evidence of the employee’s intention to no longer be bound by the employment contract.

In the event that an employee violates a workplace policy or rule, including, presumably, policy or rules regarding cannabis use, the Courts have held that employers must prove the following factors before breach of a company rule can be considered cause for termination:[7]

  1. The rules must be distributed;
  2. The rules must be known by the employees;
  3. The rules must be consistently enforced by the company;
  4. The employees must be warned that they will be terminated if a rule is breached;
  5. The rules must be reasonable; and
  6. The breach of the rule must constitute a violation of an essential condition of the employment contract or a breach of the faith inherent to the work relationship or be fundamentally or directly inconsistent with the employee’s obligations to his or her employer.

Application

Taking these lessons from existing law regarding workplace policies for drugs and alcohol, employers who are crafting new, or updating existing, policies and procedures regarding recreational marijuana use in the workplace are encouraged to:

  1. Create clear, written workplace rules and disciplinary procedures;
  2. Provide and advise all employees of such written rules and policies and the consequences of breaking them;
  3. Apply such rules and procedures fairly;
  4. Enforce such rules and procedures consistently for all employees; and
  5. Fully and clearly document all testing and discipline that takes place.[8]

[1] Rio Tinto Alcan Primary Metal Kitimat/Kemano Operations B.C. v. National Automobile, Aerospace Transportation and General Workers of Canada (CAW-Canada, Local 2301), 2011 CanLII 7211 (BC LA) at para. 35.

[2] Imperial Oil Ltd. and C.E.P., Loc. 900 (Re) (2006), 157 LAC (4th) 225 at para. 92.

[3] Imperial Oil Ltd. and C.E.P., Loc. 900 (Re) (2006), 157 LAC (4th) 225 at para. 92.

[4] In a unionized workplace however, the union must be involved in any agreement that deals with the recovering employee’s ongoing employment, whether or not such agreement contains an element of rehabilitation in the form of unannounced testing.

[5] Volchoff v. Wright Auto Sales Inc., 2015 ONSC 8029.

[6] Daley v. Depco International Inc., 2004 CanLII 11310 (ON SC).

[7] Moyen v. D. D. Investments Inc., 2005 ABPC 317 at paras. 41-42.

[8] Daley v. Depco International Inc., 2004 CanLII 11310 (ON SC) at para. 19.

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