Lexpert Magazine

January 2019

Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.

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LEXPERT MAGAZINE | JANUARY 2019 15 Recreational cannabis may be legalized but its use is subject to strict employment rules BY SANDRA RUBIN Just as organizations don't tolerate drinking alcohol or smoking cigarettes in the workplace, he says, nor are they obliged to tolerate recreational marijuana use. He advises supervisors to handle anyone who shows up im- paired by cannabis in the same way they would anyone who shows up impaired by alcohol, noting that while it is not criminal conduct, "bad behaviour can still very well be disciplinable conduct in the workplace, up to and including termination of employment." But do Canadian companies or organizations have the right to limit employees' use of marijuana when they T he legalization of recre- ational cannabis in Can- ada heralds a new era for employers, who must now deal with the potential fallout of the drug in their workplaces. Legalizing recreational mari- juana use "is not a licence for impairment or inappropriate conduct in the workplace," says Damian Rigolo, an employ- ment lawyer at Osler, Hoskin & Harcourt LLP in Toronto. Safety First, Cannabis Second COVER STORY FEATURES are off the clock? What about those companies that employ people in safety-sensitive jobs? For them in particular, moni- toring employee impairment is a risk-management issue. Canadian employers are not legally permitted to perform random drug or alcohol testing unless there is evidence of widespread abuse in the workplace, as established in a land- mark 2013 6-3 decision from the Supreme Court of Cana- da. In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., the majority, in recognizing the privacy rights of employees, held that an employer cannot impose random alcohol testing on union- ized employees unless it can show a culture of substance abuse in the workplace. Even a safety-sensitive workplace does not justify random testing with disciplinary conse- quences, the court decided. And it is widely assumed that the recreational use of cannabis, now legal, will be treated the same way. e Alberta Court of Appeal broadened the scope to include non-unionized workplaces in Suncor Energy Inc. v. Unifor Local 707A, a 2017 challenge mounted to the Irving decision. e Supreme Court of Canada declined to hear an appeal from Suncor. e bottom line is that it's close to impossible for Cana- dian employers to do random drug testing. PHOTO: SHUTTERSTOCK

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