Many Canadian organizations in a wide variety of industry sectors are concerned about alcohol and drug use patterns and the need to take appropriate steps to deal with employees who may be impaired on the job. Many have provided assistance programs to help those with a current or emerging alcohol or drug problem. Some have work rules around alcohol and drug use, while others may have some reference to “fitness for duty” requirements in a health and safety policy. However, many employers have recognized this may not be enough in order to minimize safety risk and associated liabilities. They are implementing comprehensive policies and are supplementing their approach with alcohol and drug testing under certain circumstances.
Although cannabis is a concern for workplaces across the country, employers need to remember there are a wide range of drugs that may be used or abused that can negatively impact job performance. Some drugs are illegal, while others may be legally prescribed, but are increasingly being used illegally (e.g. oxycodone, fentanyl and others). And although alcohol is a legal “drug”, and recreational cannabis use was made legal on October 17, 2018, their use can negatively impact a wide range of job skills. This is why when dealing with workplace issues employers need to have a broader focus on fitness for work, and reinforce that through well communicated policies and procedures.
Cannabis Use: Recent statistics on cannabis use present some very relevant concerns for the workplace, and the roadways. The 2018 Health Canada cannabis survey 1 (May to July) found a significant increase in self-reported current use at 35% of adult Canadians (combined recreational and medicinal) , a somewhat higher level than the 15% in the broader alcohol and drug 2017 survey. Historically, results in self report surveys tend to be under-reported.
- of the 22% reporting use for recreational purposes in the past year, 70% worked full time, part time or were self employed;
- 15% of employed individuals reported using at or before work less than once a month, and 8% said they used weekly or more often;
- another 13% said they use cannabis for medical purposes, yet 66% said they did not have medical documentation from a health care professional, and only 22% accessed it legally through Health Canada access to cannabis for medical purposes program;
- in both groups, nearly 40% said they had driving within two hours of using; 43% of recreational users within the last month, and 55% of the medical users.
The message? A large percentage of users do not think they are impaired and appear to not recognize the safety risk they present for themselves and others in the workplace and on the roadways. Statistics Canada’s most recent data for the first half of 2018 found similar results; 14.3% of the Canadian population aged 15 years or older reported driving a vehicle within two hours of consuming cannabis.
Impacts for Employers: In addition to the broader challenges and legal obligations employers face they are legally obliged to ensure workplace safety and fitness for work associated with the potential use of a wide range of drugs, including the continued abuse of opioid products. In particular, employers are faced with substantial challenges when addressing potential safety issues regarding both the use of cannabis for medical purposes, as well as potential increased use for recreational purposes now that use is legal.
These developments present increased challenges to employers who are obliged to take all responsible steps to ensure workplace safety – not only where a worker who is unfit for work can impact other workers, but also others on their premises (contractors, suppliers, visitors), the surrounding communities and the general public.
II. Medical Cannabis:
Human rights laws protect people from discrimination and harassment because of past, present or perceived disabilities. Disability covers a broad range and degree of conditions including physical, mental disorders, hearing or vision disabilities, and other conditions including medical conditions.
Employers have a duty to take reasonable steps to accommodate the individual’s needs up to undue hardship, which will vary with each situation (e.g. financial costs, size and resources of the employer, extent of disruption of operations, morale problems of other employees etc.). These laws must be taken into consideration when looking at medical cannabis in the workplace.
Until April 1, 2014, Health Canada authorized individual licenses for Canadians with serious medical conditions to grow and use cannabis for medical reasons. Changes in the law and the Health Canada program have allowed medical practitioners to authorize individual use; note this is not a prescription, it is only an authorization. Health Canada is licensing commercial producers to provide the product under strict security and quality control. (287 as of January 16, 2020). Since legalization, each province is setting up their retail model. However, nothing changes regarding the legal access for medical purposes; it must be through a Health Canada licensed producer, and not a provincial retail outlet.
Health Canada has made it clear that “Cannabis is not an approved drug or medicine in Canada and has not gone through the necessary rigorous scientific trials for efficacy or safety. Health Canada does not endorse the use of cannabis but the courts have required reasonable access to a legal source of cannabis for medical purposes.”
The College of Family Physicians of Canada issued a guideline in February 2018 which was distributed to 30,000 doctors across Canada 2. It recommends very limited use in general, and that use be restricted to certain serious and limited medical conditions, and only if other products have not been effective. They note the evidence of its effectiveness for medical purposes is limited, and results of most studies are inconsistent or insignificant. They also report on the considerable evidence of adverse effects. So does the Canadian Medical Association who recently said doctors should get out of the business of authorizing for medical purposes once cannabis use is legal. In late September 2018 the Occupational and Environmental Medical Association of Canada issued a statement on the implications of cannabis use for safety-sensitive work, stressing the considerable uncertainty around the extent and duration of impairment, particularly taking into account individual differences between workers 3.
Despite this guidance, there are many doctors providing the authorization to individuals for a variety of reasons – it is no longer a situation where the individual is seriously ill as was the case with Health Canada’s original program. The government has issued guidance to doctors addressing potential therapeutic uses, precautions and adverse effects. Information is highlighted on the fact THC use affects areas of the brain involved in perception, attention, concentration, decision making, awareness, alertness and coordination which are all needed to safely operate a motor vehicle. In fact they state “patients must be warned not to drive or operate complex machinery after smoking or eating cannabis or cannabinoid medications.” It appears the employer’s perspective was not taken into account at all when the regulations were issued. Because authorization is presumably for a medical condition, there may be a duty to accommodate an employee who advises use of medical cannabis is required to address their medical condition. However the question becomes whether the individual truly has a valid medical condition in need of accommodation, whether they legally have access to the product, and if yes, whether the employer must accommodate the choice of medication, particularly if it can present risk on the job.
The Access to Cannabis for Medical Purposes Regulations 4 have allowed those with legitimate medical authorization and appropriate Health Canada approvals to grow their own cannabis since August 2016. Although with the October 17 legalization, anyone can grow up to four plants in their residence without approval, anyone using and growing for medical purposes must still have appropriate HC approval to grow legally using seeds from a licensed producer.
Responsible Medication Use: Company policies need to be comprehensive (not limited to cannabis) and be very clear on the rules around fitness for work, the use and possession of illicit drugs and other mood altering substances, and responsible use of medications. Medication use (including medical cannabis) can impact a wide variety of cognitive and physical skills, even when used as directed. The 2017 Health Canada survey, in fact, found 22% of Canadian adults used three categories of psychoactive pharmaceuticals in the past year, which were opioid pain relievers, stimulants and tranquilizers/sedatives.
There are many other classes of medications that can also impact capabilities, including some over-the-counter products. Therefore company policies should be clear on the following:
- setting out a prohibition on reporting unfit for work due to the use of medication, the intentional misuse of medications, possession of prescribed medications without a legal prescription, and any distribution, offering or sale of medications (e.g. trafficking).
- the expectations around responsible medication use including prescribed and over the counter medications;
- the requirement to use a safe alternative when available;
- the requirement to consult with a physician or pharmacist regarding potential side effects, and in particular, the employee needs to explain their job functions so advice is given in the right context;
- the requirement that employees advise on any modified work required due to medication use; and
- reserve the right, on a confidential basis, to confirm the nature and duration of work modification, again ensuring the doctor/pharmacist understands the nature of the individual’s job functions and work environment.
Medical Cannabis: An employer may find out about authorized use if the employee notifies of the need for use and/or modified work (as above), or if the Medical Review Officer reports a positive drug test, or a negative with a safety warning. In the latter case, the MRO must first determine if it is actually being used and sourced legally. Once an employer is aware of medical cannabis use, decisions are needed on:
- whether the employee can continue in their job or whether there is work modification available to accommodate the situation;
- how long alternative work can actually be accommodated, if at all;
- if there is a need to accommodate their choice of medication or whether an alternative medication can be used that would allow them to work safely;
- whether they will require an Independent Medical Evaluation to determine if the person is safe to do their job and/or if an alternative medication should be used; and
- at what point does the accommodation meet the standard of undue hardship such that employment needs to be terminated, or lay off occur until they can safely resume duties.
Therefore employers should have a plan in place on what their next steps are when notified. This could include a letter to the individual’s doctor or the authorizing physician setting out the specifics of the individual’s job functions and work environment, the legal obligations to ensure a safe workplace, and a request for a determination as to whether there is an alternative medication that can be used safely under these conditions. If not satisfied with the recommendations, a qualified Independent Medical Evaluation should be considered.
It is difficult to know how this will work out for employers, and in particular those in high risk industries, until clarification is provided through the courts, human rights rulings and arbitration decisions. There are only very preliminary decisions at this point. With the recent legalization, it is even more essential that employers have clear policies in place, and ensure they are well communicated.
III. Legalization of Cannabis:
The government made cannabis use, possession and cultivation legal for recreational purposes on October 17, 2018. There is still a lot to be sorted out at the provincial level regarding how it will be sold, where it can be used etc. Each province is sorting out its own approach.
Many industry associations, made submissions, met with key bureaucrats, and met with elected politicians and senators, and appeared before the standing committees reviewing the government’s proposal in both the Legislature and Senate. They stressed the lack of consideration for employers and the implications they face with legalization – over and above the current challenge with medical cannabis. They remain legally obliged to comply with occupational health and safety laws, and can be criminally liable for failure to take all responsible steps to ensure safety in their workplace. Despite this, the legislation was enacted with no consideration for workplace challenges.
Colorado Experience: 5 There are cautions from the Colorado experience where they moved from illegal recreational use, through medical use, to legalization in recent years. The Health Canada 2018 survey illustrated that there has been an increase in use levels in Canada, and there were parallel increases in Colorado showing substantially higher use levels compared to national use levels in all age groups.
In addition, statistics from Colorado compared data from the four years prior to legalization (2009-2012) with the four years since legalization (2013-2016) and found:
- traffic deaths when the driver tested positive for cannabis increased an average of 66%;
- the number of drivers charged with DUI for cannabis was up 63% compared since legalization compared to the prior years; and
- emergency room visits related to cannabis increased 35% and hospitalizations increased 72%.
Because use is banned in public places, it is estimated that 60% of cannabis use is “edibles” where there is difficulty determining potency; people will ingest the product, not get the immediate effects as from smoking, ingest more, and be severely impaired when the full effects are realized. They can be small packages will look like food in lunch pails, and can also be found in tea, coffee, energy drinks and many other products. Although selling edibles is not currently legal in Canada, people can purchase these products from many sources, can make their own, and the illegal stores have been selling these products in any event. It appears legislation will be changed later in 2019 to allow the legal production and sale of edibles.
Cannabis Impacts on Performance: Whether illegal, medically authorized or legal, cannabis impacts performance. For example:
Cannabis use contributes to decreased attention, impairs the user’s ability to divide attention between two tasks, adversely affects short-term memory, hinders long term memory, reduces learning ability and increases the time needed to make decisions.
Psychomotor performance is highly impaired by cannabis use, as demonstrated repeatedly in simulated driving and flying experiments. Cannabis can impair or reduce short term memory, alter sense of time, and reduce the ability to do things which require concentration, swift reactions and coordination such as driving or operating machinery; in combination with alcohol, the risk of accidents is greatly increased.
As with alcohol, there are clear hangover effects experienced as a result of cannabis use. These are greatest immediately after smoking and decline slowly over a period of hours, although reports vary on the time period over which there is continued evidence of impairment; with the level of THC in cannabis significantly higher, these impacts can be seen over longer periods.
After studying cannabis use by pilots, one group of researchers confirmed that complex human performance involving machines may be impaired as long as 24 hours after smoking a moderate social dose of cannabis (very low THC values), and that the user may be unaware of the drug’s influence.
The potency has increased substantially from the 3.5-5% THC used in these earlier studies; it is now upwards to 30% THC from the licensed producers, and can be substantially higher in edibles, shatter, and “dabs” (60-95% potency). Some of the studies the medical community could draw from allowed for a maximum potency of slightly less than 10% THC.
Impaired Driving Laws: For many years drivers have faced severe consequences and potential criminal charges if the police determine the driver is impaired by any substance, including alcohol, illegal drugs, prescription drugs or over the counter medications. There were various changes to the impaired driving laws last year for drivers in general and in some provinces for drivers of vehicles requiring a Commercial Vehicle Operator’s Registration. The Criminal Code sets a level of 5 ng of cannabis detected in the blood as the level that would result in consequences under the Code, however there are also consequences for a level of 2 ng but less than 5 ng, and for having more than 2.5 ng of THC in the blood combined with an alcohol level of .05 BAC.
In order to improve roadside detection capabilities, the government announced officers may utilize the Draeger 5000 oral fluid screening device for an initial test by the road side when the officer has grounds to believe the driver is under the influence of a drug. This device is being used by police in certain U.S. states and some European countries as an accurate roadside screening device. The designated cut-off level is 25 ng. at the roadside in Canada. If the driver tests positive they will be brought in for examination by a Drug Recognition Officer and may have to provide a blood sample for analysis in a laboratory. Penalties will depend on license type, the level of alcohol or drugs tested and how many times the driver has been convicted. And the device can be used by police in all jurisdictions across Canada should they choose. It was recently announced another device will be available for police to use; it is under final review (April 2019).
IV. Alcohol and Drug Policies: Recent Trends
The best way to address these cannabis challenges is through a comprehensive alcohol and drug policy. A significant number of employers in many industry sectors are introducing these policies with a focus on fitness for work and minimizing risk of accidents and injuries. Court and arbitration decisions have confirmed employers do not need “proof” of a problem before taking proactive steps in this area to ensure workplace and public safety by issuing comprehensive policies and including testing under certain circumstances. (Note: The requirement of “proof” of a problem is key, however, to introducing random testing in a unionized workplace as a result of the Supreme Court ruling in Irving Pulp and Paper.)
The introduction of policies, including alcohol and drug testing, has primarily been in higher risk industries, including all sectors of transportation, oil and gas, mining, construction, utilities, forestry and manufacturing. Some municipalities, health care and retail distribution have also introduced policies with testing under certain circumstances.
Most companies have introduced alcohol and drug policies reinforcing fitness for work. However, some have introduced Fitness for Work Policies with added focus on fatigue/ extreme fatigue and other related issues. Each company needs to determine what approach is best for their operations.
Policy Development - Process: There are a number of key areas that policies must address, and several difficult decisions that need to be tackled. The first step is to establish a background justification for the specific policy decisions that follow. There are some valid reasons for taking a “two step” process. The courts/arbitrators/human rights tribunals have found the reasons for establishing the policy - the thought patterns that go behind it - are just as important as the policy components themselves.
The policy should meet the standard set out by the Supreme Court 6 to establish a bona fide occupational requirement for introducing the policy, as well as for introducing certain requirements (e.g. testing) or having higher standards for safety-sensitive or other designated positions or designated safety-sensitive work locations.
Policy Components: Various adjudicators have indicated that simply putting in place a policy copied from a U.S. parent, or someone else in the industry will not meet the Supreme Court bfor test. There is no ‘typical’ policy or program; each program should reflect the unique corporate culture and values of the company, the fundamental aspects of the business it is in, the regulatory environment within which it must operate, and most importantly, the specific program needs. However, there are a number of key areas that policies must address, and several difficult decisions that need to be tackled. And it should be clear throughout the following sections that assistance for those who may have a problem is an important part of a balanced approach.
Canadian companies cannot simply implement a testing program or policy. Testing may play a role as an investigation tool, a deterrence tool, or a monitoring program but must be part of a broader approach that includes the following:
- Awareness and education programs, both at policy introduction and ongoing;
- Access to assistance, through an internal or contracted employee assistance program, or as appropriate, community resources, and assessment tools as required;
- Training for supervisors on their role under the policy, including both performance management, and appropriate steps to take to investigate a possible policy violation; and
A variety of tools to investigate if someone may be in violation of the policy. Each of these components should be included in any company program. The policy statement itself should:
- be written down and broadly communicated to all employees;
- provide clear direction on the objective and application (who is covered and under what circumstances);
- outline the applicable rules around the use and possession of alcohol, illicit drugs and other mood altering substances, responsible medication use, and expectations associated with on call and unexpected call in situations, including any higher standards for risk- or safety-sensitive positions;
- confirm employee, supervisor/manager responsibilities, and the responsibilities of the designated Program Administrator (primarily managing the testing program) and Occupational Health as appropriate;
- clarify avenues to access assistance, reinforce the importance of obtaining assistance for a problem before it impacts the workplace, and outline conditions for return to work, including aftercare provisions on a case by case basis;
- set out the procedures which will be followed to investigate a possible policy violation, (e.g. investigation and escort procedures if someone is unfit for work, accident investigation, impaired driving situations, searches, alcohol and drug testing); and
- set out consequences for a policy violation and any conditions for continued employment, including provisions for a Substance Abuse Professional assessment to determine whether the individual has a problem in need of accommodation.
Finally, in order to be effective, it must be carefully communicated so everyone knows what is expected of them and where to get assistance if they need it. As well, supervisors need specific training on their responsibilities around performance management, assessing unfit for work situations and taking appropriate action, investigating possible policy violations, and making referrals for an alcohol and drug test when required under the policy. Someone must be in charge of the overall program, usually called the Program Administrator (PA), who will ensure consistent communications, education, and training all take place. The PA will contract for necessary external resources including testing services, an Employee Assistance Program or other counseling services, and Substance Abuse Professionals to provide specific assessments in a post violation situation or if an employee reaches out for assistance for an alcohol or drug problem.
V. Legal Developments
Canadian employers face a variety of potential legal issues that may be related to alcohol and drugs that are best addressed through consistent implementation of a clear and reasonable policy. This can include addressing the liabilities associated with the actions of impaired employees at work, due diligence responsibility around workplace safety, actions in response to possession or trafficking of illicit drugs, and the duty to accommodate those with a chemical dependency in accordance with human rights provisions.
In fact, a court decision confirmed that “human rights legislation fits within the entire legal framework within which enterprises must function…and… that framework includes other standards that also reflect deep values of the community such as those established by workers’ compensation legislation prohibiting an employer from placing an employee in a situation of undue risk, and the standards of the law of negligence.” 7 The Court stated that this fuller legal framework must be considered when a company’s occupational requirements are being assessed. The key responsibilities follow.
Occupational Health and Safety Legislation places the onus on employers to ensure the health, safety and welfare of employees; employers must prove diligence in minimizing or eliminating all potential safety risks, including those associated with independent contractors. Organizations can be liable for any negligent or wrongful acts committed by an employee acting within the scope or course of employment, which could include:
- negligence in allowing an alcohol or drug impaired employee on the worksite or on a public highway once declared unfit to work, and
- negligence when returning someone to a risk-sensitive job after treatment or after a policy violation where sufficient monitoring mechanisms are not in place and a substance-related incident results
- negligence in allowing an employee to continue to do safety sensitive work knowing they are using an impairing medication.
The company policy should have provisions to address these responsibilities.
Reinforcing these safety obligations, Canada’s Criminal Code was amended to set rules for attributing to organizations, including corporations, criminal liability for the acts of their representatives and for the representatives themselves. There is a legal duty for all persons directing work to take reasonable steps to ensure the safety of workers and the public. In essence, criminal negligence is established where the organization or individual (e.g. supervisor), in doing anything or in omitting to do anything that is its/his/her legal duty to do, shows wanton or reckless disregard for the lives or safety of others. Strong fines and jail times can result from a Criminal charge.
Contract Workers: The courts have clarified that occupational health and safety responsibilities can extend to contracted workers and sub-contractors. As a result, increasingly companies are not only introducing policies for employees, they are also introducing separate but parallel requirements for contractors (generally by issuing a ‘Statement of Requirements for Contractors’).
Putting contractors under the employee policy can present the risk of an obligation to accommodate contract workers with a dependency; accommodation under human rights legislation is the responsibility of their employer. However, it is important that it is clear to contractors when they are performing work or on the company premises/ worksite: what rules their representatives are expected to comply with, the investigations tools that will be use to determine a possible violation, and the consequences for a confirmed violation including conditions of reassignment.
Driver Liability makes the owner of a vehicle accountable for any injuries or damages caused by a person driving the vehicle with the owner’s consent. This is why companies must be clear that the rules around alcohol and drug use apply when someone is operating a company vehicle and/or operating a vehicle on behalf of the company.
It is also why policies set out the requirement to report receiving an impaired driving charge or license suspension (provincial, territorial, or state law). in these situations as they have lost their license for a specified period of time after being identified as a safety risk by the police.
Hosting Liabilities associated with the provision of alcohol to others or hosting alcohol-related events can include the provider of the alcohol, the occupier of the premises where the problem occurred, and the sponsor of the event. If they are in any way implicated in an event involving alcohol use, the company can be held responsible for injuries the person who drank may receive, and for any third party they may injure.
This is why Canadian companies must have clear rules around when alcohol can be used, as well as procedures for social and business hosting where alcohol use may be involved. This includes procedures to minimize the possibility that someone may leave in an intoxicated state that could result in injury to themselves or a third party.
Now that several provinces, including Ontario, are allowing cannabis smoking and vaping wherever tobacco can be used, employers would be wise to clearly prohibit any use in conjunction with a company social event. The strength and amount used can not be controlled in the same way as alcohol. Although they are not providing or selling the product, it is yet to be seen what the liabilities will be if someone smokes cannabis which was allowed at a company function and then crashes a vehicle – particularly where injuries or fatalities result. Alcohol combined with cannabis use increases the potential for crash risk.
Federal and Provincial Human Rights Legislation prohibits discrimination on the basis of a disability. Current or former dependence on alcohol or drugs is considered a disability under the federal Act, and has been interpreted in the same manner at the provincial level. Issues around reasonable accommodation, and establishing a bona fide occupational requirement (bfor) for treating someone differently need to be addressed. Prevention initiatives including access to assessment, assistance, treatment, and follow-up services, as well as modifying hours or duties in certain circumstances would all contribute to accommodation responsibilities.
Legal Direction on Testing is becoming clearer on a number of fronts. There are at present no provincial or federal laws that would specifically require or prohibit drug testing. However, a number of decisions provide some guidance on where the law may stand on this issue. An interesting twist in the last few years has made legal interpretation a bit more complicated.
The human rights laws apply to all individuals, and decisions would accept testing in a number of situations, with the key limitation being the requirement for applicant and random testing only acceptable for safety-sensitive positions where a bona fide occupational requirement can be established. However a number of arbitrators have concluded there may need to be higher standards to meet in a unionized setting leading the way to limiting reasonable cause and post incident testing to safety-sensitive positions or safety-sensitive working environments unless the union agrees everyone should be held to the same standard.
Although each case has its’ own unique aspects, it appears the trend has been to find testing acceptable:
- as part of an investigation in an unfit for duty (reasonable cause) situation where there is evidence alcohol or drug use may be a contributing factor;
- as part of an investigation into a serious accident/incident situation, without reasonable cause, provided testing is only for those whose acts or omissions contributed to the situation;
- as part of a monitoring program after treatment to support continued recovery, normally on the advice of a substance abuse professional or treatment program;
- as a condition of return to work after a policy violation and unannounced on an on-going follow-up basis for a period of time;
- as a condition of “certification” or qualification to a higher risk position for new hires and existing employees transferring to the position, and
- on a random basis for alcohol in higher risk (safety-sensitive) positions with the qualification noted below.
In one significant human rights ruling, the Federal Human Rights Tribunal upheld alcohol and drug testing on a pre-employment and random basis for safety-sensitive positions in the motor coach industry 8. This ruling would also extend to motor carriers.
The Tribunal also ruled that any individual who tests positive and has an alcohol or drug dependency, must be provided with assistance and accommodation. This means employers must have a process in place to ensure that professional assessment is done.
However this requirement was not reflected in an individualized case in Alberta, where termination was upheld by the Court of Appeal for a post incident cocaine positive test result, even though the individual said they may need help for a problem after the incident took place. The Supreme Court ruled on the case in June 2017, saying that the Alberta decision was reasonable and dismissed the appeal. The reason for the termination was not addiction but breach of the policy, therefore the Court felt it unnecessary to consider whether the employee was reasonably accommodated 9. It was noted the employee had every opportunity to get help in advance of the incident.
Random Testing: Random alcohol and drug testing continues to be challenged and a few key decisions have been issued which better clarify an employer’s options in this area. There is no question random testing would have to be limited to the highest risk “safety-sensitive” positions in any operation. The issue would be around the technology used for testing, which may be limited to using oral fluid testing technology rather than urinalysis. However, it appears the law is taking a different perspective in a unionized setting.
A series of labour arbitration rulings have stated that to introduce random testing in a unionized setting in Canada, employers either have to have prior union agreement, or evidence of a drug problem in the workplace. In an Irving Pulp and Paper case, although the lower courts did not agree an extensive problem must be evident, the Supreme Court of Canada, issued a decision confirming that for random alcohol testing to be acceptable, there must be a demonstrated problem with alcohol use or evidence of an alcohol problem in the workplace 10.
An arbitration case involving Suncor attempted to demonstrate a problem sufficiently serious to justify the introduction of random testing, but the grievance by Unifor against Suncor’s new requirement was upheld in March 2014 11. The company appealed this ruling to the courts and it was overturned, finding the arbitrator had interpreted the Supreme Court’s direction on proof of a problem as being too limiting and sent it back for another hearing. The union appealed this to the Alberta Court of Appeal, which in late September 2017 upheld the middle court ruling to send the case for a further hearing before a different arbitration panel. The issue was whether the evidence of a problem had to be established for the union members themselves, or in the workplace in general 12. In late 2018 an agreement was reached between Suncor and Unifor to move forward with the random testing program for safety-sensitive and specified positions in early 2019 rather than go back to arbitration and the courts. This is applicable to all N. Alberta operations, and all contractors on those sites must add random alcohol and drug testing to their own programs.
In another case, on April 3, 2017 the Ontario Superior Court of Justice refused an injunction request by the Amalgamated Transit Union to prevent the Toronto Transit Commission from implementing the random testing component of their policy. The judge decided random tests will increase the likelihood that an employee in a safety-critical position who is prone to using alcohol or drugs too close in time to coming to work, will either be detected when the test result is known or deterred by the prospect of being randomly tested. The program was implemented in May 2017. The union has not appealed this ruling, and an ongoing arbitration case against the entire policy continues.
Many Canadian employers have concluded one of the most effective ways to prevent workplace alcohol and drug problems, and to effectively investigate possible violations and take corrective action, is by first establishing a clear and comprehensive workplace policy. Each company must decide what will work best in their own environment; there is no model policy but there are certainly key components that should be addressed as outlined earlier in this paper.
Each program should be tailored to meet the specific needs of each workplace, and should be seen as a reasonable and responsible response to those stated needs. The result should be an appropriate balance between health and safety (due diligence) and respect for individual rights and privacy. This means finding a balance between measures to control or deter use (clear standards, investigation tools and consequences/discipline) and prevention measures (education, training, and employee assistance). Alcohol and drug testing has been introduced in a significant number of workplaces in Canada and in particular in higher risk sectors, but these programs are only defensible if they are part of a more comprehensive approach, and the highest standards of privacy and accuracy are used for the testing process.
With respect to both medical cannabis and the recent legalization, it would be wise for employers to have a policy in place and a strategy to address the situation if someone claims the need for use for medical reasons. And legal cannabis, whether medicinal or recreational, is still a mood altering substance. It’s use can clearly present risks on many job sites and for many occupations. Therefore, the policy should prohibit being under the influence of any mood altering substance that could impact safety and job performance. This would include cannabis used for medical or recreational purposes.
- Health Canada Canadian Cannabis Survey 2018 is found at: https://www.canada.ca/en/services/health/publications/drugs-health-products/canadian-cannabis-survey-2018-summary.html
- A report on the guideline is found at: http://www.cfp.ca/content/64/2/111
- the OEMAC position statement can be found at: https://oemac.org/wp-content/uploads/2018/09/Position-Statement-on-the-Implications-of-cannabis-use.pdf
- The regulations can be found at: http://gazette.gc.ca/rp-pr/p2/2016/2016-08-24/html/sor-dors230-eng.php
- The full 2017 Colorado report can be found at https://www.rmhidta.org/html/FINAL%202017%20Legalization%20of%20Marijuana%20in%20Colorado%20The%20Impact.pdf
- SCC file No. 26274, September 9, 1999 (Meiorin) accessible at: http://www.canlii.org/en/ca/scc/doc/1999/1999canlii652/1999canlii652.html
- Oak Bay Marina Ltd (Painter’s Lodge) and B.C. Human Rights Tribunal and Robert Gordy, B.C. Court of Appeal, September 2002 accessible at: https://www.canlii.org/en/bc/bcca/doc/2002/2002bcca495/2002bcca495.html
- Salvatore Milazzo and Canadian Human Rights Commission, and Autocar Connaisseur Inc. (Coach Canada), Federal Human Rights Tribunal, November 6, 2003. Decision can be accessed at: https://www.canlii.org/en/ca/chrt/doc/2003/2003chrt37/2003chrt37.html
- Stewart v. Elk Valley Coal Corp. Supreme Court of Canada, June 15, 2017. Decision can be accessed at: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16679/index.do
Communications, Energy and Paperworkers Union of Canada Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC34, June 2013 can be viewed at: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/13106/index.do?r=AAAAAQAVSXJ2aW5nIFB1bHAgYW5kIFBhcGVyAAAAAAAAAQ
- The Suncor arbitration decision and dissent can be viewed at: http://www.coaa.ab.ca/safety/SuncorUniforArbitrationDecision.aspx The Court of Queens Bench ruling can be viewed at: http://www.canlii.org/en/ab/abqb/doc/2016/2016abqb269/2016abqb269.html
- The Suncor Court of Appeal decision can be viewed at https://www.canlii.org/en/ab/abca/doc/2017/2017abca313/2017abca313.html
- The Toronto Transit Commission court decision can be viewed at https://www.canlii.org/en/on/onsc/doc/2017/2017onsc2078/2017onsc2078.html