Canadian Employment Law Today

court would have come to the same con- clusion had the testing disclosed evidence of THC — the active psychotropic ingre- dient in marijuana — in Walker. THC can build up and be detected in the body long after the physical effects of mari- juana consumption have ended. us, although testing might disclose elevated levels of THC, its presence doesn't neces- sarily connote impairment. For instance, in Colorado, the legal limit for THC pres- ence in the blood is 5 nanograms of THC per milliliter of blood. However, this read- ing can occur in recreational users days after the last consumption of THC. e Ontario Court of Appeal decided in En- trop v. Imperial Oil Limited that unless the test can establish actual impairment at work, an employer cannot dismiss for cause exclusively based upon test results. e decision in Stone v. SDS Kerr Beavers Dental relates to alcohol consumption and clearly establishes the distinction in Entrop. Norman Stone was terminated for cause for a variety of performance-related issues, in - cluding the consumption of alcohol at work. As in Walker, a written policy existed that prohibited each of the activities for which he was fired. e policy specifically mentioned that termination for cause could occur for major offences — including substance abuse on company premises. e manual went on to state, however: "e intent should be to correct a problem rather than punish an em - ployee." It also provided a detailed descrip- tion of the levels of the progressive disciplin- ary process that were to be imposed before a termination for cause could occur. Stone did not work in a safety-sensitive position and, although it was clear he had consumed alcohol at work on several occasions, he had never been warned and the disciplinary pro - cess hadn't been implemented. e court found in favour of Stone on all issues, based primarily on the employer's failure to warn Stone, let alone formally im - plement the progressive discipline process. e outcome might have been different, and more in line with Walker, had Stone been working in a safety-sensitive workplace. Unionized environments In the unionized environment, the de- cision in Mielke and Entrec Corp. is of significant interest. Dallas Mielke was a hauler of heavy loads — a safety sensitive position. Entrec's written policy stated that for any near mishap or other poten- tially dangerous occurrence, if reasonable grounds existed or there was a failure to provide a credible explanation, a supervi- sor was required to order a drug or alco- hol test. e consistent practice of Entrec was not to terminate for a positive test but to assign the employee to a substance abuse professional and enroll the employ- ee in a rehabilitation program if it was determined the employee was addicted. Failure of the employee to comply with the policy was grounds for termination. Mielke had been involved in some minor accidents in the past, but nothing major. e incident at issue involved his truck slip- ping off a ramp in bad weather conditions. Mielke could have invoked concerns about the weather but did not. e supervisor was not satisfied with Mielke's explanation for his failure to invoke his right to refuse. He was also purposely vague and sarcastic as to the actual cause of the accident. Mielke was asked to take the drug and alcohol test. He initially refused, indicat - ing that he didn't want to be subjected to random tests for the coming year — one of the implications of taking the test. He later reconsidered, but was terminated for cause anyway. e adjudicator decided that the termination should be upheld, as Mielke was fully aware of the policy and consequences of his refusal to take the test, and company practice indicated that his job would not have been in jeopardy. Employers' options: Anticipation, preparation and education e saying "being forewarned is being forearmed" should be the rallying cry for employers. e examples above represent the tip of the iceberg, but they also pro- vide insight as to the tendencies of courts and tribunals on these issues which will arise in the workplace when the Criminal Code is amended. Even though recreational use is still illegal, it is exceedingly difficult to terminate a mari- juana user for cause. So what is an employer going to do when marijuana use doesn't even have the stigma of criminality? Anticipation. Employers need to review their workplaces and identify situations or areas where impairment would be either problematic or dangerous. e legal regime currently provides protections to employ - ees even in workplaces that are highly safety sensitive. is includes industries involving transportation or employing heavy machin- ery, hazardous materials or chemicals. ere are cases which support the propo- sition that in the workplace, random drug or alcohol testing is not allowed in non-hazard- ous environments even where actual impair- ment exists. Termination for cause in these instances appears to require progressive discipline first. In hazardous environments, unless an employer can establish that the job site is safety sensitive and there is at least a general issue of drug use and impairment at work, the imposition of random testing and summary termination is problematic. Tests which provide evidence of drug usage, but don't establish actual impairment, often don't support termination for cause. Em - ployers need to be aware of these issues and undertake appropriate reviews. Preparation. In view of the limitations on employers, even where safety is an issue, policies and procedures must be created or enhanced to deal with dope-induced impair - ment. Behaviours that will not be tolerated need to be listed. Clear disciplinary proce- dures need to be identified. By doing so, in the absence of situations where cause might exist, an employer may take preventative and remedial action, such as suspension or progressive discipline. Even in safety sensi - tive workplaces, employers should begin the work to create or strengthen infrastructures that will respond to these concerns. Most decisions have been in the unionized environment. ey indicate that the more forgiving and supportive a drug policy is, the more likely it is that discipline and intrusive testing will be accepted. For instance, zero tolerance policies have been dealt with more harshly by arbitrators than those which offer other options before discipline is imposed. Education. All staff must be kept advised of the development or modification of any policy and they should be aware of its con - tents. is can be done by means of general meeting or information bulletins on internal websites. Employers must keep on top of the inevitable legal changes that will occur as the legal landscape evolves. e failure to do so will be costly, particularly if a policy or pro - cedure is inadequate or wrong. Huge pen- alties or damage awards could prove cata- strophic, not to mention the negative impact on a company's reputation. Where fair and clearly worded policies exist, the courts and tribunals tend to be more disposed to render favourable decisions. e road ahead will be bumpy. If com - panies carefully develop a road map, there will be fewer blind alleys and detours on the journey for employers and human resource professionals to negotiate. For more information see: • Suncor Energy Inc. v. Unifor, Local 707A, 2016 CarswellAlta 921 (Alta. Q.B.). • Walker v. Imperial Oil Ltd. 1998 Carswel- lAlta 859 (Alta.Q.B.). • Entrop v. Imperial Oil Limited 2000 Car- swellOnt 2525 (Ont. C.A.). • Stone v. SDS Kerr Beavers Dental 2006 Car- swellOnt 3831 (Ont. S.C.J.). • Mielke and Entrec Corp. 2015 CarswellNat 6411 (Can. Lab. Code Adj.). Canadian HR Reporter, a Thomson Reuters business 2016 October 12, 2016 | Canadian Employment Law Today ABOUT THE AUTHOR SHELLEY BROWN Shelley Brown is an employment Lawyer with Steinberg, Hope, Title and Israel, LLP. He was also Director of Human Resources for a large international insurance company and its' Ethics Officer.

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