Canadian HR Reporter

CANADIAN HR REPORTER October 31, 2016 16 FEATURES LOOKING FOR A SUPPLIER OR VENDOR? Visit hrreporter.com/hr-vendors-guide EMPLOYMENT LAW Road map to weed in the workplace Legal considerations as legalization approaches By Shelley Brown L egalization of marijuana — whether people agree with it or not — seems to be coming, and soon. Employers need to prepare themselves now because employees are going to be more open about using the drug once it becomes legal. And they will have to deal with the challenges that recreational, as opposed to medical, use is going to involve. e legal community is working in new terrain. e case law, de- veloped since the 2000 Ontario decision of Entrop v. Imperial Oil Limited, makes it clear that only actual impairment at work, as op- posed to evidence of usage, allows for termination for cause. And the determination of impairment is often guesswork with regard to marijuana. Here's a look at the issues and case law that might be applied when the legislation comes into effect. Medical use Currently, under the Controlled Drug and Substances Act, regula- tions impose strict controls over how marijuana can be prescribed. Its consumption in the work- place is another issue altogether. In the employment context, me- dicinal use of marijuana relates primarily to questions of accom- modation. e employer is enti- tled to confirm that an employee has a medical condition requiring prescribed marijuana. Beyond that, it must accommodate its use up to the point of "undue hard- ship." e bar for undue hardship is quite high, restricting what the employer can do. Even where an employer can establish the existence of a bona fide work-related requirement, the employer must still prove an inability to accommodate the worker up to the point of undue hardship to justify a termination. This applies in safety-sensitive circumstances as well. However, the threshold of undue hardship is slightly lower when safety is an issue. Tread carefully Until recently, even in safety- sensitive work environments, an employer's entitlement to require an employee to undergo testing and to terminate for cause was not available unless it could be proven there had been a series of "signifi- cant" events justifying discipline or dismissal. e recent Alberta Court of Queen's Bench decision Suncor Energy Inc. v. Unifor, Lo- cal 707A, has watered down the requirement to allow testing to occur where an employer can establish a demonstrable gen- eral problem in a safety-sensitive environment. e recreational user does not benefit from statutory or com- mon-law protections relating to accommodation. Despite this, an employer should still tread care- fully. Case law has consistently shown that the use of recreational drugs or alcohol, both in and out of the workplace, does not auto- matically entitle an employer to terminate for cause, even where employment policies and manu- als prohibit usage. It is impairment, not usage, that is at issue. If an employee lights up at lunch, but is capable of performing her duties, the em- ployer's only realistic option is to terminate without cause upon providing reasonable notice or pay in lieu thereof. Where impairment does cre- ate performance issues, the em- ployer's best option is to imple- ment progressive discipline. Case law has shown that even where written policies exist, particularly where there are no (or limited) safety issues, progressive disci- pline should be applied first. Implications of Walker decision It's no surprise many of the rele- vant decisions, both in unionized and non-unionized workplaces, emanate from the oil and gas in- dustry in Alberta. is is due, in large part, to the safety-sensitive nature of the oil patch. e case of Walker v. Imperial Oil Ltd. is in- structive. Earl Walker was a non- unionized operations manager. In 1989, Imperial Oil imple- mented a drug and alcohol policy. Walker signed a statement ac- knowledging his commitment to it. e policy expressly prohib- ited the presence of any alcohol in the body while at work and imposed strict limits on pre-work consumption. Walker's position was subject to ongoing medi- cal examinations wherein tests were administered to determine the presence of alcohol and illicit substances. On Sept. 22, 1993, Walker was scheduled for a work-related med- ical examination during which he provided four test samples. His urine and saliva tests indicated a significant amount of alcohol but the blood and breathalyzer tests were unusable. e nurse admin- istering the tests testified that although Walker didn't display signs of intoxication, he smelled of alcohol. Based upon the urine and saliva tests, Walker was ter- minated for cause. The court held that the tests were part of a scheduled work-re- lated medical examination — not random. e court also held that the tests indicated excessive alco- hol levels in Walker's body, which identified actual impairment and not just usage. It's an open question as to whether the court would have come to the same conclusion had the testing disclosed evidence of THC — the active psychotropic ingredient in marijuana — in Walker. THC can be detected in the body long after the physical ef- fects of consumption have ended. Thus, THC's presence doesn't necessarily connote impairment. e Ontario Court of Appeal de- cided in Entrop 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. Unionized environments In the unionized environment, the decision in Mielke and En- trec Corp. is of significant inter- est. Dallas Mielke was a hauler of heavy loads — a safety-sensitive position. Entrec's written policy stated that for any near mishap or potentially 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 alcohol test. The consistent practice of Entrec was not to ter- minate for a positive test but to as- sign the employee to a substance abuse professional and enrol her in a rehabilitation program if it was determined she was addicted. Failure 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 slipping off a ramp in bad weather condi- tions. 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. Mielke was asked to take the drug and alcohol test. He initially refused, indicating 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 termi- nated for cause anyway. e adju- dicator decided that the termina- tion should be upheld, as Mielke was fully aware of the policy and consequences of his refusal to take the test, and company practice indicated his job would not have been in jeopardy. Employers' options e saying "Being forewarned is being forearmed" should be the rallying cry for employers. Even though recreational use is still illegal, it is exceedingly dif- ficult to terminate a marijuana user for cause. So what is an em- ployer going to do when marijua- na use doesn't 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 employees even in workplaces that are highly safety sensitive. ere are cases that support the proposition that in the workplace, random drug or alcohol testing is not allowed in non-hazardous en- vironments even where actual im- pairment 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 is- sue of drug use and impairment at work, the imposition of random testing and summary termination is problematic. Preparation. 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 procedures 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. Most decisions have been in the unionized environment. ey in- dicate 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 poli- cies have been dealt with more harshly by arbitrators than those that offer other options before dis- cipline 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. Failure to do so will be costly, particularly if a policy or proce- dure is inadequate or wrong. e road ahead will be bumpy. If companies carefully develop a road map, there will be fewer blind alleys and detours on the journey for employers and human resource professionals to negotiate. Shelley Brown is an employment lawyer at Steinberg, Title, Hope and Israel in Toronto. He can be reached at sbrown@sthilaw.com or (416) 225- 2777, ext. 231. It is exceedingly difficult to terminate a marijuana user for cause. Credit: Kelvin Wong (Shutterstock)

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