Employers may be dancing the line between discrimination, due diligence when cannabis is legalized
By Rob McLean
The occupational health and safety landscape in Canada is about to face a great challenge: the legalization of marijuana. This substance may make food taste great and music sound even better, but it’s at odds in the workplace.
Let’s take a look at a brief history of marijuana in Canada. Prior to the year 2000, there was no medical marijuana in the country. This all changed with the landmark court case of Crown v. Parker where Parker was a Canadian with epileptic seizures and, within the privacy of his home, found marijuana to decrease the severity of his illness. He was charged with marijuana possession, a charge that was eventually struck down in the court of appeal as a Charter of Rights and Freedoms issue, seeing as it would deprive him of his liberty and security.
After this case, the federal government supplied marijuana for a handful of cases that met very restrictive criteria.
After this came the Marihuana Medical Access Regulation. It was a deregulated simplified version of the original process involving a form requiring only a doctor’s consent to get access.
It was during this time the Crown v. Smith case occurred, following the government trying to pursue limiting medical marijuana to only its dried form and putting a restriction on a person’s ability to grow their own. The Crown lost this case on the ground that a person has a right to access affordable medicine.
And finally, now the Liberal government is pursuing further deregulation of marijuana to fulfill one of its campaign promises.
In summary, it’s getting easier to access, comes in many different forms of consumption, and if it’s not already in your place of work, it’s coming.
How do we manage the impact of this change? Let’s start off with going over how some employers have attempted to manage it so far and ended up in the court room.
First, in 2015, there was French v. Selkin Logging. French was an employee with cancer who worked for Selkin Logging as a heavy equipment operator and would smoke marijuana on his breaks for treatment of his cancer pain. French had no prescription and did not officially disclose his marijuana use to his employer. One day after a marijuana smoke break, French was driving his truck and hit a moose. During the investigation of this most Canadian of incidents, marijuana was found in French’s truck. When asked to stop smoking marijuana French refused and Selkin terminated French who then filed a human rights complaint.
How could Selkin Logging have fared better in this case? When you know about employees marijuana use, intervene early before costly incidents occur and give due consideration to an employee’s case instead of abruptly terminating them. This will increase their sense of being treated fairly and lessen the probability they will drag the employer into a courtroom, which was noted in the judge’s decision as a big contributing factor to French’s legal action. This was a result of the companies no tolerance policy towards marijuana. Although the court did confirm this policy as fair, considering the safety sensitive nature of the work, it resulted in Selkin immediately terminating French without getting a chance to document accommodation considerations, making its court performance less than ideal.
Next is Old v. Ridge Country Contracting. In this case, the complainant, Old, did go through the proper channels of getting his certification and disclosing to the employer. When Ridge Country Contracting received this information, it displayed of great need for remedial human resources training when it came to the conclusion: “Seizures and marijuana? You’re fired!” No investigation or accommodation consideration was given and that’s the reason why Ridge now faces a full hearing.
How could have Ridge fared better? By doing an investigation and engaging the employee in the accommodation process. This is the only way to secure the existence of a bona fide occupational requirement for being marijuana free.
And then comes Calgary v. CUPE 37. This one had medical authorization and notified the employer who then took no action for over one year, but after a change in leadership, suddenly removed the employee from safety sensitive duties. Soon after, the worker was sent for an independent medical evaluation that concluded the worker was able to do safety sensitive work as long as he didn’t smoke four hours before the start of his shift. Interestingly, the medical evaluation also recommended that the worker be subject to a number of urine tests to establish “baseline THC levels” with repeat testing to be done to ensure the worker didn’t develop a dependency. There is no scientific evidence to confirm the efficacy of this and it was shot down in arbitration.
What are the lessons learned here? For the independent medical assessment, buyer beware. Also, take action immediately. Consider the risk the company took on with a years’ worth of impaired driving on its work site.
Lastly, there’s International Brotherhood of Electrical Workers v. Lower Churchill Transmission Construction Employers Association. An employee who had passed his pre-employment test was found in possession of marijuana. He had a prescription but failed to disclose and were subsequently terminated. The termination was upheld by arbitration, but on appeal, the decision was returned back to the arbitrator to consider if a lesser penalty was appropriate.
What can be learned here? Consider progressive discipline and whether or not the employment relationship is actually irreversibly harmed from the lack of disclosure and justifies termination for cause.
So these case studies aside, let’s get to the meat of the issue. How do we manage the risk of marijuana in the workplace? There is work being done on establishing a testing method and level at which marijuana can be said to cause impairment, but until that is developed, we have to rely on the following:
•Communicate to employees their responsibility to disclose the use of impairing substances such as prescription medications and marijuana.
•Train supervision in identifying the signs of impairment.
•Conduct drug testing. Pre-employment, reasonable grounds, post-incident, site access, the less well known post-rehab testing and the controversial random testing, which we’re waiting for the Alberta Court of Appeal’s decision on in the Suncor case. The more testing you can get, the more layers of defense your safety management system has against impairment.
•Investigate and ask yourself “What am I being asked to accommodate here?” Are you being asked to accommodate a disability that necessitates the use of marijuana? Is this an addiction involving the inappropriate use of marijuana or is this just plain recreational use? For disability you’re going to want accommodation instructions from a doctor. For the other two you’re going to want to engage a substance abuse professional to make an addiction versus recreational use determination.
•Ask yourself “Is being free from the influence of marijuana a bona fide occupational requirement for this position?” If it isn’t, you don’t have much ground to stand on in preventing an impaired employee from continuing her employment.
•Keep good documentation. Even after trying your hardest to do everything right, you still may end up in arbitration or a court room. It’s best to go in with the facts in hand instead of being faced with the convenient truths or untruths that a complainant may have spun up in the meantime. Key things to document are the accommodations needed, the extent to which accommodation was considered and a determination on whether or not that accommodation met the conditions required for undue hardship. As a note, economic reasons are often not enough to declare undue hardship.
•Don’t like what you get back from a physician? Ask again or ask elsewhere. Challenge employees and medical professionals to see if there are alternative treatments to an impairing substance; you’d be surprised how much accommodation instructions can be tightened or loosened up after a simple phone call or well-groomed letter.
The challenge of marijuana in the workplace is one of balancing rights and obligations. An employer has a duty to ensure the health and safety of a workplace and to ensure its workplace is free of discrimination on protected grounds — but not as far as humanly possible; only as much as reasonable. The key to dancing on the line between discrimination and due diligence is investigation, accommodation consideration and documentation.