Adapting to Legalization
Cannabis in the Workplace
As Canada begins the process of adapting to the nationwide legalization of cannabis, workplace impairment and drug testing have become central to the conversation. While the Cannabis Act strictly governs who can acquire cannabis and in what quantities, how it can be produced, how it can be advertised, and much more, workplace use falls under the purview of existing legislation, and some of the relevant law remains unsettled on what is and what is not permitted.
The general ambiguity surrounding the obligations of both employers and employees when it comes to cannabis drug screening policies, and particularly the rights of medical users, has left many Canadians uncertain.
As it stands, screening for cannabis use requires that urine, saliva, hair, or blood are collected and chemically tested for the presence of THC. These are medical tests that are generally considered invasive enough to raise privacy and human rights concerns, and the question of how an employer can legally implement a cannabis screening policy does not have a straightforward answer. Not only do the rules change between provinces; they are also heavily reliant on arbitral case law that is still evolving.
The Human Rights Code of Canada classifies addiction as a disability and the rules laid out in that document protect both those with addictions and those with perceived addictions from discrimination by employers. This means that any consequences that result from cannabis testing might be considered discriminatory under those rules. As a result, the issue of drug screening and the consequences that result from the implementation of drug screening policies have become central issues for the Human Rights Commission of Canada.
According to a document entitled “Impaired at Work,” published by the Canadian Human Rights Commission (CHRC) in 2017, an individual employee can be subjected to cannabis testing, as well as any other drug or alcohol testing, only if they are in a safety-sensitive position. Safety-sensitive position is a term that is so far not specifically defined in any federal statute and therefore claims related to drug screening are considered on a case-by-case basis. Further, being in a safety-sensitive position is not by itself sufficient cause for testing. According to the CHRC, an employer must also either have reasonable cause to suspect that the employee is impaired at work, or the employee must have been involved in an accident, the cause of which was not either mechanical or structural failure or due to other environmental factors.
In regard to random testing, the rules are even more stringent. An employer can only randomly screen workers if they are in safety-sensitive positions and they can clearly demonstrate that there is a widespread substance abuse problem in their workplace that cannot be addressed by less invasive measures. These rules were first clearly defined by the Supreme Court in 2013 related to a grievance filed by the Communications, Energy, and Paperworkers Union of Canada against Irving Pulp & Paper. The majority of a divided court ruled that testing is only permitted for employees who are in safety-sensitive positions or in dangerous work environments and that those tests can only be “for cause” and in strictly limited circumstances.
Arbitrator Picher stated in the ruling, “It may well be that the balancing of interests approach would allow for general random, unannounced drug testing in some extreme circumstances. If, for example, an employer could marshal evidence which compellingly demonstrates an out-of-control drug culture taking hold in a safety-sensitive workplace, such a measure might well be shown to be necessary for a time to ensure workplace safety. That might well constitute a form of ‘for cause’ justification.”
This ruling was later upheld in a similar case brought against Suncor Energy by the general trade union Unifor. In 2012, the company announced that it would be implementing random alcohol and drug testing, and the union filed a grievance on the grounds that the policy would be an invasion of worker privacy. In 2014, using the test devised in the earlier case, the court ruled that Suncor was unable to demonstrate that the safety concerns were sufficient to justify random drug testing. Suncor appealed this decision to the Court of Queen’s Bench and succeeded in 2017, resulting in the matter being sent to a fresh arbitration panel for a new ruling. This new arbitration has not yet taken place and the matter is ongoing.
The arbitral case law bearing on workplace drug screening in Canada is still evolving and how this might be affected by the legalization of cannabis remains to be seen. Even in cases where all the requirements needed to justify cause for drug screening are met, there are further obligations that the employer must understand. As substance dependence is considered a disability under the Human Rights Code, if a drug screening program is implemented and an employee tests positive for THC or some other substance, the employer must understand that any consequences applied could be considered discrimination. According to the code, the employer has a “Duty to Accommodate” that employee up to the point of “undue hardship.”
This too is an evolving concept carrying some ambiguity. In general, for cannabis dependence, accommodations might include things like short- or long-term changes to the employee’s schedule to allow for treatment, modifying hours or performance requirements to meet needs set out in a medical assessment, reassignment to a different position, and short- or long-term sick-leave. The set of accommodations that are expected of an employer are determined on a case-by-case basis and they should be designed to be the best accommodations for all parties involved, not simply the ideal accommodations for the employee.
The employer is obligated to accommodate the employee up to the point of “undue hardship.” There is no standard legal definition for undue hardship, as this point will be different for each employer and for each situation. For this reason, claims are assessed on an individual basis, but in general, an employer can claim it has reached this point when it can provide evidence that the accommodation will be prohibitively expensive or create health or safety risks. According to the CHRC, In order to demonstrate undue hardship as a result of cost, the employer would typically have to show that the financial impact would be so great that it would “either change the essential nature of the organization’s operation or it would substantially impact the employers financial viability.”
The Duty to Accommodate applies not only to substance dependence, but unilaterally to all disabilities including the many for which medical marijuana is prescribed. Employers have the right to expect a reasonable level of competency and performance from their employees and workplace policies related to substance use can of course be implemented. In the same way that an employer can have a zero tolerance policy for alcohol consumption at work, similar rules can be formed around cannabis consumption, yet special rules apply when dealing with medical users. The condition for which the employee is taking cannabis is considered a disability and a duty to accommodate their needs is then in effect.
As Canadians adapt to the legalization of cannabis, many employers are anticipating an uptick in workplace impairment. A paper titled “Clearing the Haze” by the Human Resources Professionals Association (HRPA) submits that data from other places that have legalized recreational cannabis such as Uruguay, and the states of Washington, Oregon, California, Nevada, Alaska, Colorado, Massachusetts, and Maine, can shed some light on what employers can expect. When the HRPA paper was published in 2017, 22 percent of the Canadian adult population consumed recreational cannabis, and another 17 percent showed some willingness to try it if it were legal. Increases in the number of users in other locations after legalization indicate that the number of users in Canada will also increase drastically.
The legal discussion surrounding workplace drug screening policies in Canada is contentious and unfolding as we speak, and the legalization of cannabis will likely bring a lot more attention to the issue. The prevailing idea so far has been that the tests are invasive, and that the bar for administering them should be high. Employers must carefully consider the approach they will take toward handling these issues going forward.