Canadian employers will soon encounter a new landscape when it comes to drug and alcohol testing in safety sensitive workplaces as cannabis use is set to be legalized in October 2018. Employers are faced with balancing employee privacy rights in terms of their off duty conduct, with safety concerns in the workplace. Of paramount concern for employers is whether an employee is impaired from performing the duties of his or her job.
A common pitfall comes from the fact that uranalysis testing cannot prove current impairment of an employee due to cannabis. Arbitrators have consistently held that something more than a positive test for cannabis must be relied on to prove an employee was impaired at work. For this reason, the best preventative measure is to carefully train supervisors, human resources personnel, and occupational health and safety committee members, to monitor and record tangible evidence of a worker's impairment, including the smell of cannabis, out of character behaviour, eye discolouration, poor muscle coordination, and delayed reaction times and abilities.
Since the Supreme Court of Canada's decision in Stewart v. Elk Valley Coal Corp., 2017 SCC 30, employers are more able to rely on breach of a drug and alcohol policy, instead of just impairment, to justify employee discipline based on a positive post-incident drug test. A recent decision of a B.C. labour arbitrator is a good example of how this issue can arise in a unionized context: Tolko Industries Ltd. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1-425, 2017 CanLII 79297 (BC LA) ("Tolko").
In Tolko, the grievor was reversing a 30,000 pound log loader when he collided with a chip loader operated by another employee resulting in serious property damage. Post-incident testing revealed that the grievor had cannabis in his system, but the Arbitrator held that this alone could not justify discharge since the test does not prove current impairment. However, the employer argued that the discipline had been based not on allegations of impairment, but instead on the grievor's breach of the drug and alcohol policy. The Arbitrator interpreted the policy to prohibit an employee from testing positive, and accordingly found that some discipline was appropriate in the circumstances. Instead of discharge, a five-day suspension with a two-year ban on operating mobile equipment was substituted by the Arbitrator (which was the appropriate discipline for the grievor recommended by the company's Human Resources Manager prior to discharge). The Arbitrator also imposed a condition on the grievor that he had to yield a negative drug test prior to returning to work.
As cannabis becomes more readily available, employers should carefully consider whether their drug and alcohol policies and procedures require updating to ensure they can be relied on when disciplining employees. A common example of outdated language is a policy which prohibits "illegal drugs and alcohol", since after October 2018, such a prohibition will not capture cannabis.
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