Canadian Employment Law Today - sample

Weed in the workplace: An employer's road map GPS for the new terrain ahead as marijuana legalization approaches BY SHELLEY BROWN L egalization of marijuana — whether you agree with it or not — it 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, developed since the 2000 Ontario decision of Entrop, makes it clear that only actual impairment at work, as opposed to evidence of usage, allows for termination for cause. And the determina - tion of impairment is often guesswork with regard to marijuana. e road ahead is largely unmapped. ere will be many potholes, detours and speed bumps along the way. Here's a look at the issues and case law that might be ap - plied when the legislation comes into effect. Medical use Currently, under the Controlled Drug and Substances Act, regulations impose strict controls over how marijuana can be prescribed. Its consumption in the workplace is an - other issue altogether. In the employment context, medicinal use of marijuana relates primarily to questions of accommodation. e employer is entitled to confirm that an employee has a medical condition requiring prescribed marijuana. Beyond that, it must accommodate its use up to the point of "un - due hardship." e bar for undue hardship is quite high, restricting what the employer can do. Even where an employer can estab- lish 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 in order to justify a termination. is applies in safety sensitive circumstances as well. However, the threshold of undue hardship is slightly lower when safety is an issue. Tread carefully on recreational use Until recently, even in safety sensitive work environments, an employer's en- titlement to require an employee to un- dergo testing and to terminate for cause was not available to an employer unless it could be proven that there had been a series of "significant" events justifying discipline or dismissal. e recent Alber- ta Court of Queen's Bench decision Sun- cor Energy Inc. v. Unifor, Local 707A has watered down the requirement to allow testing to occur where an employer can establish a demonstrable general prob- lem in a safety sensitive environment. e recreational marijuana user does not benefit from statutory or common-law protections relating to accommodation. Despite this, an employer should still tread carefully. Case law has consistently shown that use of recreational drugs or alcohol, both in and out of the workplace, does not automatically entitle an employer to ter - minate for cause, even where employment policies and manuals prohibit usage. It is impairment, not usage, which is at issue. If an employee lights up at lunch time, but is quite capable of performing her duties, the employer's only realistic option is to termi - nate without cause upon providing reason- able notice or pay in lieu thereof. Where impairment does create perfor- mance issues, the employer's best option is to implement progressive discipline. Case law has shown that even where written poli- cies exist, particularly where there are no (or limited) safety issues, progressive disci- pline should be applied first. It's no surprise that many of the relevant decisions, both in unionized and non- unionized workplaces, emanate from the oil and gas industry in Alberta. is is due, in large part, to the safety sensitive nature of the oil patch. e case of Walker v. Im - perial Oil Ltd. is instructive. Earl Walker was a non-unionized employee in a safety sensitive industry. As operations manager, he was responsible for the functioning of a 600-pound boiler, five ethylene-cracking furnaces and a turbine generator. At trial, Walker admitted that his worst-case sce - nario would be a negligently-caused fire resulting in a catastrophic, fatal explosion. In 1989, Imperial Oil implemented a stringent drug and alcohol policy, imported into Canada. Walker signed a statement acknowledging his commitment to it. e policy expressly prohibited the presence of any alcohol in the body while at work and imposed strict limits on pre-work consump - tion. Walker's position was subject to on- going medical examinations wherein tests were administered to determine the pres- ence of alcohol and illicit substances. On Sept. 22, 1993, Walker was scheduled for a work-related medical examination during which he provided four test samples. His urine and saliva tests indicated a sig - nificant amount of alcohol. For various rea- sons, the blood and breathalyzer tests were unusable. e nurse administering the tests testified that although Walker didn't display signs of intoxication, he smelled of alcohol. Based upon the urine and saliva tests, Walk - er was terminated for cause. e court held that the tests which were undertaken were part of a scheduled work- related medical examination — it could not be said they were 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. Could Walker be applied to marijuana use in the workplace? It's an open question as to whether the AS THE inevitable legalization of marijuana takes another step forward with the impending release of the report of the federal task force, recreational use of marijuana will continue to grow despite its current status as an illegal drug. The anticipated date is sometimes in the spring or summer of 2017. Employment lawyer Shelley Brown analyzes case law dealing with employee drug use and intoxication to try to determine what the new reality could bring for employers. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: HEALTH AND SAFETY

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