Canadian Safety Reporter - sample

3 Weed in the workplace: An employer's road map GPS for the new terrain ahead as marijuana legalization approaches BY SHELLEY BROWN AS THE INEVITABLE legaliza- tion of marijuana takes another step forward with the impend- ing 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 sometime in the spring or summer of 2017. Employers need to prepare themselves now because em- ployees are going to be more open about using it. Employers will have to deal with the chal- lenges that recreational, as op- posed to medical, use is going to involve. The legal community is work- ing in new terrain. Comparisons exist, but even after the legisla- tion is tabled and it is adopted into law, it will be virtually im- possible to provide reliable legal advice to employers. The case law, developed since Entrop, makes it clear that only actual impairment at work, as opposed to evidence of usage, allows for termination for cause. And the determination of impairment is often guesswork with regard to marijuana. The road ahead is largely un- mapped. There will be many potholes, detours and speed bumps along the way. Employ- ers beware. Here's a look at the issues and case law that might be applied when the new legislation comes into effect Medical use Currently, under the Controlled Drug and Substances Act, regu- lations impose strict controls over how marijuana can be pre- scribed. Its consumption in the work- place is another issue altogether. In the employment context, medicinal use of marijuana re- lates primarily to questions of accommodation. The employer is entitled to confirm that an em- ployee has a medical condition requiring prescribed marijuana. Beyond that, the employer must accommodate its use up to the point of "undue hardship." The bar for undue hardship is quite high, restricting what the em- ployer can do. Even where an employer can establish the ex- istence of a bona fide work re- lated requirement (BFOR), the employer must still prove an inability to accommodate the worker up to the point of undue hardship in order to justify a ter- mination. This applies in safety sensitive circumstances as well. However, the threshold of undue hardship is slightly lower when safety is an issue. Employers should tread carefully on recreational use Until recently, even in safety sensitive work environments, an employer's entitlement to require an employee to under- go testing and to terminate for cause was not available to an em- ployer unless it could be proven that there had been a series of "significant" events justifying discipline or dismissal. The re- cent Alberta Court of Queen's Bench decision Suncor Energy Inc. v. Unifor, Local 707A has watered down the requirement to allow testing to occur where an employer can establish a de- monstrable general problem in a safety sensitive environment. The recreational marijuana user does not benefit from statu- tory or common-law protections relating to accommodation. De- spite 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 terminate 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 du- ties, the employer's only realistic option is to terminate without cause upon providing reason- able notice or pay in lieu thereof. Where impairment does create performance issues, the employ- er's best option is to implement progressive discipline. Case law has shown that even where writ- ten policies exist, particularly where there are no (or limited) safety issues, progressive dis- cipline should be applied first. Only then would termination for cause be acceptable. 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. This is due, in large part, to the safety sensitive nature of the oil patch. The case of Walker v. Im- perial Oil Ltd. is instructive. Earl Walker was a non-unionized employee in a safety sensitive in- dustry. As operations manager, he was responsible for the func- tioning of a 600-pound boiler, five ethylene-cracking furnaces and a turbine generator. At trial, Walker admitted that his worst- case scenario would be a negli- gently-caused fire resulting in a catastrophic, fatal explosion. In 1989, due to the Exxon Valdez spill, Imperial Oil imple- mented a stringent drug and alcohol policy, imported into Canada. Walker signed a state- ment acknowledging its impor- tance and his commitment to its adherence. The policy expressly prohibited 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 medical examinations wherein tests were administered to de- termine the presence of alcohol and illicit substances. On Sept. 22, 1993, Walker was scheduled for a work-relat- ed medical examination dur- ing which he provided four test samples. His urine and saliva tests indicated the presence of a significant amount of alcohol. For various reasons, the blood and breathalyzer tests were un- usable. The nurse administering the tests testified that although Walker didn't display signs of intoxication or impairment, he smelled of alcohol. Based upon the results of the urine and saliva tests, Walker was terminated for cause. The court held that the tests which were undertaken were part of a scheduled work-related medical examination. As a re- sult, it could not be said that they were random. The court also held that the tests indicated ex- cessive alcohol levels in Walker's body, which identified actual im- pairment and not just usage. Could Walker be applied to marijuana use in the workplace? It's an open question as to wheth- er 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 build up and remain in body tissue long after the physical effects of marijuana consumption have ended. Thus, although testing might disclose elevated levels of THC, its pres- ence doesn't necessarily con- note impairment. For instance, in Colorado, the legal limit for THC presence in the blood is 5 nanograms of THC per milliliter of blood. However, this reading can occur in recreational users days, or even longer, after the last consumption of THC. The On- tario Court of Appeal decided in Entrop v. Imperial Oil Limited that unless the test can estab- lish actual impairment at work, an employer cannot dismiss for cause exclusively based upon the results of the test. The decision in Stone v. SDS Kerr Beavers Dental relates to alcohol consumption and clearly establishes the distinction which was drawn in Entrop. Norman Stone was terminated for cause Canadian HR Reporter, a Thomson Reuters business 2016 News | November 2016 | CSR Level > pg. 7

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