Canadian HR Reporter, 2021
The court held differently with respect to
Imperial Oil's alcohol testing policy. Breatha-
lyzer testing for alcohol was a reliable indica-
tor of current impairment. In the context of
Imperial Oil's highly safety-sensitive environ-
ment where supervision was limited or non-
existent, random alcohol testing was reason-
ably necessary — but only to the extent that
individual accommodation of employees
who test positive was available. This included
the consideration of remedial sanctions less
severe than dismissal.
As a result of Entrop, pre-employment drug
testing and random drug testing is consid
-
ered discriminatory and is simply not the
best or only answer to discourage use and
impairment at work.
Practical considerations
Employers seeking to mitigate the risk of can-
nabis impairment and legal challenges to its
policies may look to the following measures:
• Prohibiting use during work hours.
Employers, however, should avoid zero-
tolerance approaches to respect accom-
modation obligations.
• Requiring disclosure. Anyone claiming a
medical need for cannabis during working
hours is obliged to disclose it.
• Implement testing alternatives. With
training, objective observation tools may
be equally effective as effective. Educat
-
ing employees about the risks associated
with cannabis use will also help mitigate
use within and outside of the workplace.
Cannabis use is yet another aspect of em-
ployee conduct that an employer must seek
to manage. Testing, however, is simply not
the best answer to deter use, unless it is part
and parcel of a post-accident investigation
process. Training, education and monitoring
are much better tools to control legitimate
cannabis-related safety concerns.
For more information, see:
• Aitchison v. L & L Painting and Decorating
Ltd., 2018 HRTO 238 (Ont. Human Rights
Trib.).
• Airport Terminal Services Canadian Company
v. UNIFOR, Local 2002, 2018 CanLII 34078
(Can. Arb.).
• Entrop v. Imperial Oil, 2000 CanLII 16800
(Ont. C.A.).
• Health reports: What has changed since can
-
nabis was legalized? (Feb. 19, 2020), Statistics
Canada, https://www150.statcan.gc.ca/n1/
daily-quotidien/200219/dq200219c-eng.htm
• Ontario Human Rights Commission's
Policy on Drug and alcohol testing, http://
www.ohrc.on.ca/en/policy-drug-and-alcohol-
testing-2016
September
8,
2021
|
Canadian
Employment
Law
Today
CREDIT:
RAPIDEYE
iSTOCK
Training, education,
and monitoring are good tools
to control cannabis-related
safety concerns.
ABOUT THE AUTHOR
Rishi Bandhu
Rishi Bandhu is an employment lawyer in Oakville, Ont., advising
employers and employees on all aspects of employment and
labour law. He can be reached at (905) 849-0025 or rishi@blpc.ca.
