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