Canadian Employment Law Today

Canadian HR Reporter, 2021 4 Nearly 3 years into legalization, employers are still trying to figure out how to mitigate the risk of workplace impairment Cannabis and the workplace — Random tests still not the answer ACCORDING TO Statistics Canada, can- nabis use has increased since legalization. COVID-19 lockdowns appear to have en- couraged the trend. This warrants concern in the workplace because cannabis is a sub- stance causing impairment — meaning it affects judgment, focus and attention. These faculties are critical in a safety-sensitive envi- ronment and necessary in workplaces where professional judgment and communication with clients and customers is required. What can an employer do to mitigate the risk of workplace impairment from cannabis? No right to be high at work Employees do not have a right to be impaired or use cannabis at work unless it is required as a form of accommodation and its use does not jeopardize workplace safety. Aitchison v. L&L Painting & Decorating Ltd. is an important Ontario Human Rights Tri - bunal decision that illustrates the point. The employee was dismissed for smoking can- nabis on a swing stage suspended 37 stories above ground. He admitted to smoking two joints during his breaks to manage pain-re- lated symptoms, but the evidence did not re- veal a cannabis addiction. He tried to argue that there was no evidence of actual impair- ment in relation to his work-related func- tions. The tribunal dismissed his application and simply accepted, without evidence, that cannabis impairs and can present unaccept- able safety risks. Impairment uncertainty While we may know that cannabis impairs, understanding the extent of impairment is an entirely different issue. Cannabis, unlike alcohol, presents unique challenges with respect to controlling im - pairment on the job. With alcohol, we can determine, with a high degree of scientific precision, when impairment will occur and how long the window of impairment will last. The same cannot be said about canna - bis impairment. Airport Termination Services Canadian Com- pany v. UNIFOR, Local 202 is a federal arbi- tration decision that helpfully illustrates the uncertainty. The unionized employee in question was a ramp agent on the tarmac at Toronto's Pearson International Airport. His failure to follow procedure resulted in a workplace accident, causing damage and delay but no injury. A mandatory drug and alcohol test following the accident came back positive for cannabis metabolites. Further investiga - tion revealed that the employee consumed cannabis immediately after work, but at least 12 hours prior to his shift. He did so to manage pain associated with a chronic back issue. Medical evidence as to whether or not the employee was impaired during his shift was conflicting and inconclusive. The arbitrator found that there was no evidence of impair - ment at the time of the workplace accident, but was troubled by the lack of control sur- rounding the employee's use of cannabis giv- en the safety-sensitive nature of his position. There was very little control or monitoring of the employee's cannabis consumption, both by the employee's doctor and the employer. The scientific literature regarding impair - ment isn't any clearer today. Random testing not the answer Some employers have explored the possibil- ity of implementing randomized cannabis testing to determine use and possible impair- ment in the workplace. The legal answer is less than satisfactory for these employers. The Ontario Court of Appeal's 2000 de- cision in Entrop v. Imperial Oil is a key start- ing point. In 1992, Imperial Oil implemented a comprehensive drug and alcohol testing pol- icy at its Ontario oil refineries. Employees in safety-sensitive positions would be subject to unannounced random alcohol and drug testing as a means of deterring impairment at work. A positive test resulted in termina - tion of employment. Further, the policy re- quired mandatory disclosure of a current or past substance abuse problem which would result in reassignment to a non-safety-sensi- tive position with reinstatement to the for- mer role under strict conditions. The Court of Appeal considered whether Imperial Oil's alcohol and drug testing poli- cy was discriminatory on the basis of "handi- cap" (now disability), and if so, whether or not the testing provisions could be justified as a "bona fide occupational requirement" (BFOR). Imperial Oil's policy carried an adverse consequence for anyone testing positive on a pre-employment or random drug test, or a pre-employment or random alcohol test. The sanctions could include a refusal to hire, discipline, or termination. These sanctions applied to the social drinker or casual drug user as well. In effect, the recreational user was perceived by the employer to have a sub - stance abuse handicap and it was assumed that the person would likely be impaired at work and not fit for duty. Random testing was therefore discrimina- tory and could not be justified as a BFOR. Imperial Oil could not demonstrate that random testing was reasonably necessary be- cause the urinalysis method used for testing was not a valid test of present impairment. Rather, it showed the presence of drug me- tabolites in a person's blood, which only meant that the drug had been used some- time in the past. The test did not measure how much was used or when. Accordingly, the test had no predictive value in determin- ing the likelihood of impairment on the job. Further, the court held that "automatic ter- mination of employment for all employees after a single positive test is broader than necessary." CASE IN POINT: DRUG TESTING Recreational cannabis use across Canada became legal on Oct. 17, 2018. Legalization has allowed many to avail themselves of the mental and physical health benefits of consuming cannabis without fear of being criminally stigmatized. However, this has increased the concern for employers that employees might be impaired at work and increase the risk of workplace accidents. Employment lawyer Rishi Bandhu discusses the winding legal path of workplace drug testing and possible alternatives for employers to reduce the risk of workplace impairment. BACKGROUND BY BY RISHI BANDHU Pre-employment drug testing and random drug testing is considered discriminatory and is simply not the best or only answer to discourage use and impairment at work.

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