Canadian Employment Law Today

Getting ready for legalized marijuana Once marijuana is legalized in Canada, employers will have to treat employee use somewhat differently — but still as an intoxicating substance BY TIM MITCHELL I n a throne speech in December 2015, the federal government affirmed its commitment to follow through on a campaign promise to legalize, tax and regulate non-medical access to marijuana. e Task Force on Marijuana Legaliza - tion and Regulation, created to meet with governments, experts and stakeholders, is scheduled to report its findings in Novem- ber 2016. In the spring of 2017, the govern- ment intends to introduce its legislation. e exact form that the legislation will take is not yet clear. However, in the interim, employers should be actively re-examining existing policies or planning new ones to ad- dress the altered state of affairs. e extent to which legalized marijuana will significantly affect the workplace will likely depend on how prepared an employer is for the chal - lenges it will present. In many respects, legalized possession and recreational use of marijuana will raise simi- lar issues to those that employers already face in relation to recreational use of alcohol. Like off-duty use of alcohol, off-duty rec- reational use of marijuana will generally be of no concern to employers unless it detrimen- tally affects legitimate employer interests. Both the common law and arbitral jurispru- dence recognize an employer's right to disci- pline an employee for off-duty conduct that is prejudicial to the employer's business. Like on-duty use of alcohol or reporting to work in an impaired condition, on-duty use or impairment from recreational canna - bis use will raise employment issues. It has been repeatedly acknowledged in arbitral jurisprudence that employers have the right to require employees to be fit to perform the work to which they are assigned. Employees who report to work in an impaired condition may be removed from duty, disciplined or discharged as the circumstances dictate. Employer policies that reasonably impose zero tolerance rules based on the safety- sensitive nature of the work or the workplace (such as remote oilfield camps) or that re - quire employees to abstain from substance use for a defined period before reporting to work (such as commercial pilots) will be en- forceable against recreational marijuana us- ers in the same way that they are currently enforceable against recreational drinkers. Initially, there may be greater challenges in detecting on-the-job marijuana impairment. is inability of existing tests to do so has tra - ditionally been an obstacle to employee drug testing. However, that may soon be a non-is- sue as breathalyzers that detect THC, the pri- mary psycho-active component of marijuana, become available. A new approach for employers A new approach will be required where an employee claims that her cannabis use is therapeutic. Unlike alcohol, cannabis has been recognized as having medicinal prop - erties, although its efficacy is still disputed in some quarters. Employers will be required to grapple with issues of disability discrimina- tion unrelated to the usual substance abuse concerns in cases where employees rely on cannabis for treatment of disabilities. ey will need to discern the legitimacy of em- ployees' claims of disability-related use and, assuming use is legitimate, they may need to obtain medical advice on the product being used and its effect on the particular employee if they have reasonable safety concerns. De - termining that an employee's cannabis use is incompatible with the employee's position and/or the workplace without such advice is a risky course of action. In Calgary (City) and CUPE, Local 37 (Hanmore), Re, a heavy equipment operator was restored to his safety-sensitive position and awarded several years' lost wages, over - time and pension benefits after the majority of an arbitration board ruled that the employ- er had not properly investigated concerns it had about his use of medical marijuana. e decision offers some insights into the need to inquire carefully into the circumstances. In this case, the employee had informed his immediate supervisors that he used medical marijuana for relief from pain resulting from degenerative disc disease. He was allowed to continue driving for a year and did so with no issues. He was precipitously removed from his position pending investigation when his marijuana use came to the attention of higher management. He was not treated as impaired at the time but was allowed to drive his equip - ment back to the yard and then to drive him- self home. He was not asked to submit to drug testing. He was denied the right to re- turn to his driving duties for some four years due to unresolved concerns over dependency and his ability to drive safely. e arbitration board found that, in pursuing its legitimate concerns, the employer had not acted reason - ably. In particular, it had unduly influenced an independent medical investigation by failing to provide the examiner with any information from the employee's doctor. In reinstating the employee to his position, the board did not disregard the employer's legitimate safety concerns. It required the IN 1972, the LeDain Commission of Inquiry into the Non-Medical Use of Drugs recommended decriminalization of marijuana possession and cultivation for personal use. More than 40 years later, Justin Trudeau's Liberal government is poised to do just that. What does that mean for employers with concerns the drug may be more likely to infiltrate their workplaces? Employment lawyer Tim Mitchell discusses what legalization of marijuana means for the workplace. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: DRUGS IN THE WORKPLACE Employers will be required to grapple with issues of disability discrimination unrelated to the usual substance abuse concerns in cases where employees use cannabis for treatment

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