Since the federal government's legalization of recreational cannabis, set for October 2018, employers, employees, and nearly everyone have been concerned with the way that the heavily used drug (22% of the current Canadian adult population consuming cannabis regularly; and 17% stating that they will try it, once legalized) will be regulated in the workplace. The question on every employer's mind has been: how do I know if my employee is high, and what are my options when I catch them high at work? And the solution: implementation of a "smoke-free" environment, and the reinforcement of an employer's duty to keep workplaces safe, and work safely.
Much like alcohol, zero-tolerance policies will become the norm. However, unlike alcohol, marijuana use can be detected in the bloodstream weeks after ingestion, and levels of THC (the active ingredient in marijuana) do not correspond with levels of impairment. As a result, there is currently no medical test that accurately or reliably indicates the level of a person's impairment due to cannabis use. What's more, current human rights law does not permit pre-employment or random drug testing, for use or impairment. Therefore, while zero-tolerance policies are well and good, how do we deal with actually determining whether an employee is high on the job?
My solution: Scent-Free, or Fragrance-Free Environments.
Law firms have long championed the "scent-free" policy – to control allergies, prevent headaches, and in general, create an environment tailored for great lawyering. Combined with marijuana consumption and the all-too-often "I'm going to drown myself in Axe/Dior to cover up the smell", what is stopping employers from implementing fragrance-free or scent-free policies, across the board?
A recent decision in British Columbia offers some guidance, in my opinion, on ways to control employee marijuana consumption, and assist with placing some checks and balances on the "zero-tolerance" policies, to come.
In Southwell v. CKF Inc. (2017 BCHRT 83), the employer, CFK Inc. ("CFK") manufactured and sold food service and packaging products. The complainant-employee was responsible for manufacturing a food packaging product, and received extensive health and safety training to prevent contamination of the product. Since the commencement of his employment, Southwell did not advise CFK of any disabilities.
Shortly following Southwell's hire, CFK began receiving complaints about his body odour, among other things. CFK met with Southwell a few times to address his poor hygiene, both verbally, and in writing. In an attempt to determine what was wrong, CFK inquired into whether Southwell could be experiencing a medical condition causing his body odour as well as flatulence. Southwell advised CFK that he did not have any medical issues, and CFK asked that he take steps to resolve the problem. Eventually, Southwell was terminated for his poor performance.
Southwell filed a complaint with the British Columbia Human Rights Tribunal ("BCHRT") alleging discrimination on the basis of physical disability. Of note, Southwell alleged that an underlying medical condition caused his body odour and flatulence, and was not diagnosed until after his termination. The BCHRT dismissed the complaint, as having no reasonable prospect of success. Ultimately, the Tribunal found that CFK had fulfilled its duties by inquiring into any medical conditions, and asking that Southwell take steps to address the issues. In addition, CFK had a reasonable, non-discriminatory explanation for the termination of his employment, unrelated to his bodily functions.
A similar result was attained in Von Bloedau v. Transcom Worldwide (North America) Incorporated (2014 HRTO 67), heard before the Ontario Human Rights Tribunal ("OHRT"). Throughout his two-year tenure as a customer service agent, the complainant, Von Bloedau, was the subject of repeated complaints from his coworkers regarding his body odour. Transcom progressively disciplined Von Bloedau over the course of several months, through verbal and written warnings, coaching, and suspensions. With each disciplinary notice, Von Bloedau was told of the requirement to practice proper hygiene, and that same was part and parcel of a professional and respectful workplace. Von Bloedau was also spoken to at length regarding any underlying causes possibly affecting his body odour. Finally, he was provided with an opportunity to advise Transcom of any medical conditions causing the odour.
Von Bloedau was eventually terminated. He filed a complaint with the OHRT, alleging discrimination, based on gender. Mr. Von Bloedau argued that, contrary to his predominantly female colleagues, he was a "sweaty male" and had a different standard for body odour. The Tribunal disagreed, and found no violation of the Ontario Human Rights Code based on discrimination, gender or otherwise.
In the case of Kovios v. Inteleservices Canada Inc. 2012 HRTO 1570, the complainant began work at a call centre in January 2010. During her interview, she disclosed that she was hypersensitive to scents. The employer in this case ran a facility which purported an open-concept work area, and small cubicles. At the time of her hire, the employer had a fragrance-free policy in place. The policy was enforced only as a guideline, but employees were asked to help make the workplace more comfortable for people suffering from allergies, and other conditions.
Throughout her training, the complainant began to experience health difficulties as a result of her colleagues' perfumes and colognes. She spoke with training personnel regarding the problem, and was eventually allowed to job-shadow another employee as opposed to completing her routine training. Despite this change, the complainant continued to experience difficulties and eventually reported to her manager that she could not work in the office, due to the lack of enforcement of the fragrance-free policy. However, she did not request any accommodations.
The OHRT found that Inteleservices had a fragrance-free policy, and tried to enforce it when made aware of issues, by sending employees who were wearing fragrances home to change or telling them to wash their clothing. It was also apparent that management was not aware of the scents Kovios smelled during her training until she complained of them, and then allowed her to cease her training and shadow another employee, instead. The Tribunal noted that the complainant had not made any specific accommodation requests prior to her leaving the workplace, but rather, stated that she could not work where scent-free policies were not enforced. "It appears to me from the outset, [Kovios] had a positive obligation to identify to [Inteleservices] what her accommodation needs were and to clearly explain why the solutions that had been attempted were not adequate."
Utility to Cannabis-Regulation
Employers have always had the ability to impose fragrance-free/scent-free environments. With the decisions in Southwell and Van Bloedau, it is evident that employers have an additional right to discipline employees who emit extensive body odour, causing uncomfortableness and upset in the workplace. In addition, the decision in Kovois makes it obvious that an employer retains the right to terminate employees once it has met its inquiry and accommodation obligations. Marijuana consumption is often hidden by fragrance. We have now, for several months, been struggling with ways to detect marijuana consumption in the workplace, once legalized – combining a prohibition on body odour, and a scent-free policy in the workplace – it could be that we have found a way.
(Note: Cannabis consumption via edibles is undetectable via smell and will therefore present novel issues for employers and employees, alike. I will discuss edible regulation in a follow-up piece.)
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