Lexpert Magazine

16 LEXPERT MAGAZINE | JANUARY 2019 David Shapiro, Air Canada's senior vice- president and chief legal officer based in Montreal, says while Irving remains "the law of the land and constrains our ability to conduct random testing," the airline is keeping "a close eye" on tribunals that are starting to question that approach and on leading cases such as Suncor. Airlines including Air Canada and WestJet have prohibited cannabis use en- tirely for employees in safety-critical posi- tions such as pilots and flight attendants. Via Rail Canada's alcohol and drug policy specifies a "zero tolerance environment" for impairment in the workplace that al- ready covers mood-altering substances including medication. And Canadian National Railway's employee policy states upfront a "zero tolerance for impairment in the workplace." Shapiro believes that for safety-critical companies, "a more permissive regime for random testing would undoubtedly be helpful and is warranted." In federally regulated sectors such as air travel, he says, it boils down to the political will to do so. His hope is that Canadian lawmakers and tribunals will learn from the less re- strictive US approach to random testing in safety-sensitive environments. "Given the gravity of consequences of impairment in our industry, overly tight constraints on random testing isn't helpful and, I suggest, not the pragmatic balance that is required where the impact on safety is critical." Would he sleep better at night were the airline permitted to spot-drug-test its pilots and other safety-sensitive employees? "Yes, absolutely," Shapiro says. "Random testing is an avenue that would contribute to better monitoring in safety sensitive roles. We are still hoping that the federal government will provide legislative author- ity to do so, as we have requested, especially in light of the legalization" of recreational cannabis use. Police officers and doctors can also be called on to make decisions in split-second life-or-death situations, so cognitive impair- ment may lead to disastrous consequences. Law enforcement agencies have taken varied approaches to drug testing. e Royal Canadian Mounted Police says any officer in "operations or operation- al support" must abstain from using rec- reational cannabis for 28 days prior to re- porting to work. Since its policy notes that members, especially in rural communities, can be called up for duty "at any time," a 28-day buffer would seem to amount to a complete ban on recreational cannabis use. e Toronto police force is also barring officers from using recreational pot within 28 days of reporting for active duty. e city's largest police union calls it an "ill- contrived, arbitrary" policy. e Calgary and Edmonton police have gone a step further and banned recreation- al consumption of pot entirely, although in Calgary, at least, this is being grieved by the union, which says the policy "exceeds man- agement rights." e Montréal, Ottawa and Vancouver police services allow their officers to use recreational cannabis off-duty, provided they show up "fit for duty." A momentary loss of concentration by an office worker won't likely carry the same potential risks, and so in an office environ- ment finding the right balance between workplace obligations and employees' pri- vate lives can be murkier. "An employer generally cannot dictate what an employee does in their personal time," says Jillian Houlihan, a partner in the Halifax office of Pink Larkin, an em- ployee-side labour and employment firm. "e real question is whether an employer can establish its business interests are pot- entially harmed by what the employee is doing in his or her personal life. "In the case of cannabis, what you're looking at it is whether the employee is impaired at the time they're coming in to work," Houlihan says. "at's a difficult question answer. ere are no clear tests in terms of establishing impairment in the workplace." Legalizing recreational marijuana use "is not a licence for impairment or inappropriate conduct in the workplace." DAMIAN RIGOLO OSLER, HOSKIN & HARCOURT LLP

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