Canadian Employment Law Today

February 26, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, 2020 4 CASE IN POINT: DRUG POLICIES Cannabis in the workplace: zero tolerance Does a zero-tolerance policy make sense for employers? BY BUSAYO FADERIN T here are various circumstances where drug or alcohol use by an employee, including cannabis in the workplace, may be grounds for discipline, including where: • Cannabis affects the employee's ability to perform core job functions, including safety standards, work attendance and pro - ductivity • Cannabis is in violation of a reasonable workplace prohibition on use or posses- sion of drugs or alcohol • Cannabis has a negative impact on the employer, including the employer's repu- tation, which may apply in circumstances where an employee is off duty. Zero-tolerance policies that include cannabis Depending on the nature of the workplace, organizations will have to decide the level of restriction in their drugs and alcohol policy, which can range from zero tolerance of can - nabis in the workplace to a more nuanced approach that considers the impact to the employee's performance. The zero-tolerance approach is more commonly found in safety-sensitive envi - ronments. In Labourers' International Union of North America, Local 506 v. Comstock Cana- da Ltd., the Ontario Labour Relations Board upheld the validity of a zero-tolerance pol- icy at a nuclear generating facility. Under the policy, employees found in possession of drugs or alcohol would be subject to im- mediate discharge. A zero-tolerance policy is a complete pro- hibition on any consumption of drugs (in- cluding cannabis) or alcohol regardless of the degree of impairment. Typically, these types of policies have a strict consequence of dismissal for just cause should an employee be found to have attended work under the in - fluence of alcohol or drugs. Employers ought to be cautious with this approach to ensure the policy does not inadvertently discrimi- nate against employees that require a work- place accommodation due to disability. A policy that is based on impairment or impact may have several levels of discipline built in up to and including termination for cause. For example, according to a Feb. 1, 2019 CBC News article, some Ontario rail com - panies have taken a zero-tolerance approach to cannabis consumption in the unionized workplace after legalization: GO Train driv- ers in southern Ontario are forbidden from ever consuming cannabis; VIA Rail requires employees with safety-sensitive or safety- critical jobs to divulge if they've consumed "mood-altering substances" within eight hours of the start of their workday; and On - tario Northland has a zero-tolerance policy for bus drivers, train operators and other em- ployees under the influence of drugs or alco- hol on their property, facilities, using their equipment or vehicles. Zero-tolerance policies in the workplace are more likely to be enforceable provided two conditions are met: They have been clearly communicated to the employee and they are consistently enforced. Clear communication in the workplace In Volchoff v. Wright Auto Sales Inc., the court rejected the employer's attempt to rely on a zero-tolerance policy as a basis for dismiss - ing an employee for just cause. The employer alleged that the employee violated the zero- tolerance alcohol policy by consuming a glass of wine at lunch. However, the policy had not been communicated to him before he was hired and no consideration had been offered to him in exchange for the policy when the employer sought to introduce it verbally later in his employment. The em - ployee had just been told at the time that he could not be impaired by alcohol while at work. He was not told he could not continue to have a glass of wine at lunch anymore as he had been doing for years. It was not until after his termination that the employer up - dated the employee handbook to include the policy. The Volchoff case is instructive on the need for drug and alcohol policies to be clearly communicated to employees and for disci - plinary warnings to be set out in advance. If an employee is engaging in behaviour con- trary to the policy, they should be advised that continued violations could put their job in jeopardy. Consistent enforcement in the workplace Equally important as having a clearly com- municated policy is consistently enforcing it. In Coupe v. Malone's Restaurant Ltd., the B.C. Supreme Court found that the zero- tolerance no-drinking policy was not en- forced strictly or consistently as a manager had purchased drinks for staff on the job. A zero-tolerance policy cannot be expected to be enforced when it is being applied flexibly and discretionarily. Lastly, employers should be aware of the potential difficulty of enforcing zero-toler - ance policies that apply to workplace im- pairment as opposed to use of a substance at work. Proving that an employee is impaired or unfit to work due to the effects of a sub- stance such as cannabis in the workplace may be difficult unless a drug or alcohol test is administered. Even then, since traces of cannabis can linger in the body for several days after use, such a test is not a reliable in - dicator of impairment from cannabis in the workplace. Duty to accommodate employees who use cannabis Under federal and provincial human rights legislation, an employer has a duty to accommodate an employee with a disability to the point of undue hardship. In determining whether there is an obligation to accommodate cannabis use in the workplace, the question is two-fold: Is the A zero-tolerance policy is a complete prohibition on any consumption of drugs or alcohol regardless of the degree of impairment. This is the second of a two-part series. The first part, "Cannabis in the workplace," appeared in the Feb. 12, 2020 issue of Canadian Employment Law Today and discussed the legalization of cannabis in Canada and key elements of effective drug and alcohol policies. In this issue, Busayo Faderin turns her attention to zero-tolerance policies and the duty to accommodate. BACKGROUND

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