The holidays bring lots of holiday joy – and some holiday headaches for human resources professionals and employers. And this year’s legalization of recreational cannabis use is fuelling lots of HR questions. The hottest one of the season: do employers that offer alcohol at holiday work parties also have to offer cannabis? Here’s the answer to that question and to four other burning cannabis questions employers are asking us this season.

1. We offer employees alcohol at our work holiday party (and of course, we provide taxis). Now that recreational cannabis is legal, does that mean we also have to offer employees recreational cannabis at our party?

This is the hottest question of the holiday season; here are a couple of variations of this question we often get from employers at other times of the year:

We occasionally let employees consume alcohol (usually one or two drinks) at our office ‘happy hour’ (and we offer taxis when we do so). Now that it’s legal, does that mean we allow recreational cannabis too?Most people can tolerate alcohol during lunch, for example, and we can measure the impairment because we know that we can drink one beer and still be capable of working; however, we can’t know at this point how much cannabis can be consumed. How can we justify not consuming cannabis at lunch if both substances are legal?

These questions all boil down to this one question: do employers have to treat recreational cannabis and alcohol the same, given both are legal? And the answer to all of them is the same: No, you don’t.

First, even though recreational use of cannabis is now legal, cannabis and alcohol still aren’t the same. In particular:

Unlike alcohol, for which there’s an established metric for alcohol intoxication (Blood Alcohol Concentration), there’s no similar established metric for some types of drug impairment (like cannabis).Also unlike alcohol, for which there’s an established testing method to immediately determine current impairment (breathalyzer), there’s no similar established testing method for cannabis that can deliver immediate results and distinguish recent from chronic or earlier use.

Second, regardless of the differences between cannabis and alcohol, it’s generally within the employer’s authority to set the workplace rules (assuming, of course they comply with applicable laws, such as human rights, occupational health and safety, and so on). So employers can prohibit the recreational use of cannabis, even when it’s legalized, in the same way they can prohibit the use of alcohol on their premises during working hours, or even otherwise as is appropriate depending on the position and the work environment (for example, while “on call”). And if you don’t already have workplace policies dealing with cannabis, now’s the time to implement them (or if you have some, then review and revise them) – and make sure you address off-duty work-related events. When employers are implementing new workplace policies or revising existing ones, however, there are a couple of rules to follow:

Employers of non-unionized workers have the right to unilaterally implement a policy, or change an existing one, as long as it doesn’t fundamentally alter an employee’s terms or conditions of employment. If it does, the employee can take the position the employer terminated their employment (called “constructive dismissal”) and sue the employer for wrongful dismissal. Generally, it’s unlikely the employer’s proper introduction of a cannabis-related policy will amount to a constructive dismissal, but take care: it will depend on the particular circumstances.Employers of a unionized workplace have the right to unilaterally implement a policy, or change an existing one, without the union’s endorsement if it satisfies the “KVP” test (named for the arbitration case in which it was articulated): the policy (or any aspect of it) must not be inconsistent with the collective agreement; it must not be unreasonable; it must be both clear and unequivocal; the employer must have brought the policy to the attention of the affected employee(s) before acting on it, putting them on notice of what’s required, that a breach could result in discipline (including discharge, if applicable) and if their employment is in jeopardy; and the employer must consistently enforce the policy.

Of course, when we’re talking about an off-employer premises event or occasion, all of this assumes the relevant provincial laws and municipal by-laws regulating cannabis consumption and/or the rules of the venue at which the party or event is taking place even permit recreational cannabis consumption. If not, it’s a moot point, at least for the event. But employers can – and we think should – still implement an appropriate cannabis-related policy.

2. I’ve often heard workplace policies described as “zero-tolerance”. Does “zero tolerance” imply zero use, or zero impairment?

Neither. “Zero tolerance” refers to a sanction for the violation of a workplace rule (a.k.a. policy): it means there are no second chances for an employee’s violation of that workplace rule. In the particular context of workplace drug or alcohol rules, employers’ concern about zero-tolerance policies was the risk they amounted to discrimination on the basis of disability. But the Supreme Court of Canada’s 2017 decision in the case of Stewart v. Elk Valley Coal Corporation has confirmed that a (presumably properly drafted and implemented) zero-tolerance drug and alcohol policy isn’t discriminatory – at least not for safety-sensitive positions. Although that case specifically involved cocaine, the principle is equally applicable to cannabis.

In the Elk Valley Coal case, a mine operator’s drug and alcohol policy allowed an employee to disclose any alcohol or drug-related issues before a workplace incident occurred. It stated the employer would offer treatment for their addiction or related issues to employees who self-disclosed – but those who didn’t, and who were subsequently involved in an incident and tested positive for alcohol or drugs, could be dismissed. An employee in a safety-sensitive position (driving a loader in the mine) was involved in a workplace accident; he tested positive for cocaine in a post-incident drug test. He then claimed he had a drug dependency. The employer dismissed the employee for violating its drug and alcohol policy. The employee filed a human rights complaint alleging discrimination based on disability. The Supreme Court of Canada ultimately confirmed there was no discrimination: the employee did suffer from an addiction, but he knew he shouldn’t take drugs before working, had the ability to decide not to take them and had the capacity to disclose his drug use to his employer. The employer terminated his employment for his breach of the policy’s disclosure provisions – not the disability, and further the employer had accommodated the employee to the point of undue hardship in light of its goal to provide a safe work environment where impairment could lead to “devastating consequences”.

3. Is it really necessary for an employer policy to differentiate between “safety-sensitive” and “non-safety sensitive” positions in a policy dealing with cannabis use if the policy clearly states zero-tolerance for all positions? Are employers meant to have different expectations and policies for safety-sensitive and for non-safety sensitive positions?

Yes, the differentiation is necessary. All employees, both those in a safety-sensitive and those in a non-safety sensitive position, are expected to report to work and remain fit for duty and to perform their job in a safe manner. But the risks of failure to do so by an employee in a safety-sensitive position typically exceeds those by an employee in a non-safety sensitive position. There’s always a balancing between employees’ rights to autonomy in their off-duty hours and their privacy rights, and employers’ obligation to provide a safe workplace. The additional risk posed by employees in safety-sensitive workplaces can justify adjusting this balance – and often greater employer intrusion into employee privacy and autonomy. For example, employees generally have a right to consume cannabis in their off-time and to keep this private about what they do – unless or until it affects the employer’s legitimate interests, including the obligation to provide a safe workplace. Thus, employees in safety sensitive positions can be subject to drug and alcohol testing (pursuant to a well-drafted policy) in certain circumstances; those in non-safety sensitive positions generally can’t.

Employers also often ask us two related questions:

What are the categories of safety-sensitive positions?Are staff who are responsible for the well-being and safety of others are in a safety- sensitive position?

Unfortunately, there are no “categories” of safety-sensitive positions; whether a position is “safety-sensitive” is decided on a case-by-case basis. Canadian decisions, however, indicate a safety-sensitive position is one in which the employee has a key and direct role in an operation where performance affected by substance use: could result in a significant incident, near miss or failure to adequately respond to a significant incident; and detrimentally affects any of the health, safety or security of the employee, other people, property, the environment, or the employer’s reputation. Key relevant considerations include the industry context, the particular workplace and the role of properly trained supervisors and of workplace checks and balances. Practically, in our experience designation of a position as safety-sensitive generally occurs in the context of an industrial workplace or industry (such as the oil and gas industry) or involving workers who drive (such as public transit drivers).

4. Can an employer’s policy require all employees, regardless of position, to disclose use of medical marijuana and/or a drug dependency, or can the employer only require this disclosure when the employee is in (or is seeking) a safety-sensitive position?

An employer can probably only require this disclosure from employees in (or seeking) a safety-sensitive position. The Supreme Court of Canada’s 2017 decision in Stewart v. Elk Valley Coal Corporation puts employers on firm footing in requiring employees in safety-sensitive positions to proactively disclose their use of any substance that could affect their fitness for duty, and in considering disciplinary action for an employee who fails to comply with such a disclosure policy. But an employer could have a difficult time defending a policy that extends this disclosure requirement to workers in non-safety-sensitive positions and for whom medical marijuana use or a drug dependency wouldn’t clearly give rise to workplace safety concerns. That said, a substance dependency can cause other workplace issues, such as attendance problems. So an employer might want to draft its policy in a way that encourages all employees to proactively seek treatment for substance dependency.

5. If everyone metabolizes cannabis differently and there’s no test that can measure present cannabis impairment – then what testing methods and impairment limits can we put in a policy?

First, it’s important to remember that there are very strict limits on when an employer can conduct any impairment testing: generally speaking, only employees in (or seeking) a safety-sensitive positon are subject to testing, and even then, only in certain circumstances.

Second, for those employees of whom testing is permissible, it’s true there’s still medical and scientific uncertainty about impairment from cannabis (especially around “residual impairment”, that is, how long cannabis impairment lasts after consumption) and about how to accurately measure present impairment. At least one recent arbitration decision, Re Lower Churchill Transmission Construction Employers’ Assn. Inc. and IBEW, Local 1620 (Tizzard), concluded employers can’t readily measure impairment from cannabis based on currently available technology and resources at all, creating a risk of harm they can’t manage – or accommodate, at least in a safety-sensitive position. This suggests that for a safety-sensitive position, the cut-off should be zero. However, there are Canadian decisions indicating that: oral fluid testing (typically via an oral swab, sometimes called a “buccal” or a “cheek” swab) is the least intrusive testing method; and a cut-off limit of 10 nanograms (ng) of THC per millilitre (ml) of saliva accurately detects actual impairment when the test is taken and is thus an acceptable. For example:

In its 2017 decision in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, the Ontario Superior Court of Justice denied the union’s application to issue an injunction that would prevent the Toronto Transit Commission (TTC) from implementing random drug and alcohol testing policy until the arbitrator decided its grievance challenging the policy. In the course of its decision, the court accepted that the cut-off levels in the policy – including oral fluid for marijuana testing at the cut-off level of 10 ng/ml – detects persons whose cognitive and motor abilities are likely impaired at the time of testing.In its 2014 arbitration decision in Halifax Employers Association v Council of International Longshoremen’s Association, an arbitrator upheld the employer’s drug and alcohol policy – which included an oral swab cut-off for (then illicit) marijuana at 10 ng/ml.In its 2006 arbitration decision in Imperial Oil Ltd and Communications, Energy & Paperworkers Union of Canada Local 900, an arbitration board addressed the issue of mandatory, random drug testing. In the course of its decision, the board noted it was “not contested” that the results of the oral fluid drug test at the cut-off level in the employer’s policy – 10 ng/ml – do disclose (then illicit) cannabis impairment.

Since this is a rapidly evolving area, employers are well-advised to continue to monitor the science and the criminal law standards for cannabis impairment, and to implement more frequent policy reviews and updates. And all employers, especially those that can’t test any or all of their employees, should still train managers and supervisors to watch for and to recognize indicators of impairment, including the following, and to take appropriate action when they are present:

  • First-hand observation of the employee’s conduct or physical appearance (for example, bloodshot eyes, imbalance, staggering).
  • The smell associated with drugs on or around the employee.
  • Drugs and/or related paraphernalia around the employee or the area in which they work.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

McInnes Cooper Labour And Employment Team
McInnes Cooper
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CANADA
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