Legal marijuana and the challenges of workplace drug testing

As the federal Liberals will no doubt remind you over the coming year, they made history this spring. The Senate (after a lot of grumbling, and the rejection by the government of a stack of amendments) passed C-45, the bill creating a legal market for recreational marijuana.

Prime Minister Justin Trudeau called it a promise kept. His opponents called it a catastrophe in the making. The Liberals were sending out fundraising emails on the topic within a day of the bill’s passage.

Mission accomplished? Not by a long shot. Provinces still have to define rules for transport and sale. Municipalities need to settle questions about zoning. There could be a court battle between Ottawa and provinces that wish to restrict or ban home cultivation.

But the biggest gap in the legal framework surrounding recreational cannabis has to do with the workplace. There are no federal rules regarding workplace drug and alcohol testing outside of the military. (The Canadian Forces has been conducting random blind drug tests since 2007, and plans to earmark specific positions — pilots, for example — for severe restrictions on marijuana use. But the military admits it can’t ban the drug from the ranks completely — not after it’s legal.)

A committee made up of federal officials, labour reps and people representing federally regulated industries tried and failed to reach a consensus on workplace drug testing over the past year. That means the question of how far employers can go in keeping cannabis away from the shop floor is going to be settled by the courts.

“Short answer is, it’s complicated,” says Daryl Cukierman, a partner at Blakes in Toronto who specializes in labour law.

“The courts are trying hard to strike a balance between the privacy rights of workers and employers’ need to maintain a safe workplace. I don’t think we’ve arrived there yet.”

Here’s what we do know. “No one has the right to come to work high. But then, no one had the right to come to work drunk, either,” says Ryan Anderson, a labour lawyer with Mathews Dinsdale Clark in Vancouver.

“If an employee comes to work impaired by any substance, the employer has both the right and the responsibility to prevent them from working, at least by sending them home. Legalization hasn’t changed that.”

As for workplace drug and alcohol testing, “the jury is out,” Anderson says. “Random testing is highly controversial and the courts have set the bar very high for it, but there’s still no real clarity on what’s permissible.”

The degree to which Canadian courts are willing to allow random workplace testing depends largely on the degree of danger involved in the work being done. “Random workplace testing and pre-employment testing are almost never legally justified unless you can prove the workplace is particularly safety-sensitive,” Anderson says.

“And that’s just the threshold test. I get asked questions about this all the time — an employer who thinks their legal secretaries are coming to work stoned. Sorry, you can’t implement random testing for those employees. Out of the question.”

Even workplaces that are clearly dangerous don’t have an automatic right to impose random testing. Irving Pulp and Paper unilaterally imposed a program of random alcohol testing on pulp mill employees in ‘safety sensitive’ positions in 2006. An employee (who was teetotal) grieved the policy through the union. When the case made its way to the Supreme Court, the justices ruled 6 to 3 against Irving, arguing that an employer can justify random testing only if it can offer evidence that people are coming to work drunk or high.

The court found that, on its own, the perilous nature of a workplace only justifies testing specific employees in narrow circumstances: when there are grounds to suspect the employee was impaired on the job, when someone is returning to work after an on-the-job accident, or when an employee is coming back to work after treatment for substance abuse.

The Irving test produced a different result in the case of energy firm Suncor, which imposed random testing on workers in safety-sensitive jobs at its Alberta oilsands operation in 2012. The dangerous nature of the workplace was never in doubt, and Suncor did offer evidence of workplace accidents linked to drug or alcohol use. But an arbitration panel ruled against Suncor, arguing the company had failed to draw a link between specific accidents and impairment, or between the risk posed by workplace impairment and the particular union bargaining unit that grieved the random testing.

The Alberta Court of Queen’s Bench quashed the arbitration panel’s decision, ruling that it had set the evidentiary bar too high for Suncor — that the Irving standard required that the company establish the existence of impairment in a dangerous workplace, not that it tie impairment to specific incidents or individuals. Just recently, the Supreme Court of Canada declined to hear a union appeal of the Alberta judge’s decision.

One factor that can colour a court’s approach to random workplace impairment testing is the degree to which the risk involved extends beyond the workplace to the general public. The Toronto Transit Commission introduced random employee drug and alcohol testing about a year ago. The union applied for an injunction. In rejecting that application, Associate Chief Justice of the Ontario Superior Court Frank Marrocco cited the public’s vital interest in a safely-run transit system. TTC’s workplace, he said, is “literally the City of Toronto.”

“I think the courts are more inclined to clear random testing … where the safety risk extends beyond workers to affect the general public,” says Cukierman.

These decisions — Irving, Suncor and TTC — haven’t settled all the outstanding questions about workplace drug and alcohol testing. When it comes to workplace testing for marijuana impairment, we can expect a whole lot more jurisprudence before Canadian courts figure out where to draw the line.

Testing methods for marijuana’s psychoactive component, THC, can’t pinpoint current impairment levels the way a breathalyzer can for alcohol. Once recreational cannabis use is officially legal, those disciplined or fired for testing positive for THC impairment on the job are likely to challenge those tests in court, and to argue over the degree to which the need for workplace safety should be allowed to override the right to privacy.

“If you’re an employer preparing to do this, you should consider reviewing and updating your policies so that you are better prepared to defend your policy if challenged,” says Cukierman. “And you should be very selective when it comes to deciding who has to submit to random testing. That should at least mitigate your risk.

“Most employers are reasonable. They’re not out to make an example of anyone.”