Canadian Employment Law Today - sample

employee to take steps to reduce the amount of medical marijuana available to him to an amount consistent with his medical needs and to submit to random substance testing and work performance monitoring in accordance with the employer's policies. It permitted the employer to request a further independent medical examination on conditions should it continue to have concerns about dependency. In short, it encouraged the employer to react to its legitimate concerns on the basis of fact. Existing case law also suggests that em - ployers need not fear that the new reality will require them to relax safety standards that impose reasonable conditions on therapeu- tic drug use. In Lower Churchill Transmis- sion Construction Employers' Assn. Inc. and IBEW, Local 1620 (Uprichard), Re, the employee was found to have been properly terminated for failing to reveal his posses - sion and use of medical marijuana in contra- vention of a construction project's Drug and Alcohol Standard. e Drug and Alcohol Standard required employees to "report any medication being taken… (that) may impair the employee's ability to work safely." e Ca - nadian Model prohibited misuse of prescrip- tion or nonprescription drugs while at work and required workers to report to a supervisor the use of any drugs with potential unsafe side effects. e employee's failure to comply with this obligation justified his termination despite the lack of any evidence that the employee had been impaired at work and the fact that his possession and use of marijuana was legal. His omission had denied the employer the ability to maintain its safety standards by determin - ing whether there was an actual adverse effect based on the level of THC in the employee's system during his shift. Had the employee dis- closed his marijuana use, the employer could have made arrangements to test him or to obtain a medical opinion on potential adverse effects. Overall, employers need not view the spring of 2017 with trepidation. Many em - ployers already have the tools they need to deal with what will undoubtedly be an in- crease of marijuana use, both medically and recreationally. Employers who have reason- able concerns as to the effect of medical mari- juana on their employees' abilities to work safely can and should seek answers to those concerns. Employers who have no existing policies on substance use or impairment in the workplace should take action now to craft such policies, including provisions encom - passing all substances capable of impairing performance. Employers should recognize the need to educate employees on their concerns and expectations; to train employees and su - pervisors to recognize and address impair- ment; and to resist the temptation to treat the 1936 film Reefer Madness as the last word on the dangers of marijuana. For more information see: • Calgary (City) and CUPE, Local 37 (Han- more), Re, 2015 CarswellAlta 1834 (Alta. Arb.). • Lower Churchill Transmission Construction Employers' Assn. Inc. and IBEW, Local 1620 (Uprichard), Re, 2016 CarswellNfld 213 (N.L. Arb.). CREDIT: JOSHUA RAINEY PHOTOGRAPHY/SHUTTERSTOCK Canadian HR Reporter, a Thomson Reuters business 2016 September 14, 2016 | Canadian Employment Law Today ABOUT THE AUTHOR TIM MITCHELL Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@nortonrosefulbright.com.

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