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Marijuana Legalization: Is Your Workplace Ready?

Marijuana Legalization: Is Your Workplace Ready?€¦ · Marijuana Legalization: Is Your Workplace Ready? 2. Agenda • Marijuana in the Workplace: Current state of the law • Addiction

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Page 1: Marijuana Legalization: Is Your Workplace Ready?€¦ · Marijuana Legalization: Is Your Workplace Ready? 2. Agenda • Marijuana in the Workplace: Current state of the law • Addiction

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Marijuana Legalization: Is Your Workplace Ready?

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Agenda

• Marijuana in the Workplace: Current state of the law• Addiction and Disability: Best practices for handling workplace accommodation.• Workplace Policies on Drug and Alcohol Use/Impairment: More important than ever!• Communication and Managing the Fallout Within The Organization• Testing and Zero Tolerance: What are the rules and do they work?• Termination Considerations

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Background on Medical Marijuana

• In 2000, Ontario’s Court of Appeal ruled that a total prohibition on marijuana possession infringed on individual’s Charter rights (R. v. Parker (2000), 146 C.C.C. (3d) (193).

• In this case, Parker suffered from epilepsy and experienced frequent and severe seizures. His attempts to control those seizures with conventional medication were not successful. Parker found that he could reduce the seizures by smoking marijuana and therefore grew his own.

• In response to the Court of Appeal’s decision, Parliament introduced the Marihuana Medical Access Regulations in 2001, which was modified and eventually replaced by the broader Access to Cannabis for Medical Purposes Regulations(“ACMPR”) on August 26, 2016, to allow reasonable access to “medical” marijuana.

• The ACMPR regulations regulate the current commercial industry responsible for the production and distribution of marijuana for medical purposes (“licensed producers”).

• Currently, marijuana is not an approved drug or medicine in Canada and proposed “legalization” is not expected to change this.

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Current Political Framework

• Right now, it is still illegal to consume and possess marijuana, except for the limited circumstances outlined by the Access to Cannabis for Medical Purposes Regulations (“ACMPR”) regime (i.e. for a medical purpose).

• Permitted users of cannabis are not provided with a “prescription” for marijuana use, but are provided with “authorization” for personal use supported by a doctor (health-care practitioner) who is treating the individual.

• “Authorized patients” can access medical cannabis:• from licensed mail-order producers;• by applying to Health Canada to produce a limited personal amount (those producing for themselves

will not be allowed to produce for more than one other person); or• by designating someone else to produce it.

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Marijuana Legalization – Where Are We?

• Enforcement of non-permitted sale and possession has been erratic and lax (raids on unlicensed storefront sales vs. personal use possession).

• Federal Liberal government has promised to legalize recreational use by July 1, 2018.

• Bill C-45, the Cannabis Act, introduced to Parliament on April 13, 2017, will:• allow for national recreational use by individuals 18 and older;• allow possession of up to 30 grams;• allow individuals to grow up to four plants for their own use; and• allow individuals to make edibles (e.g. “brownies”) at home for their own use, but prohibit the sale

of edibles.

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Marijuana Legalization – Where Are We?

• Bill C-45, the Cannabis Act (cont’d):• Suppliers will be allowed to brand their products (but similar to cigarettes, they cannot brand to

appeal to youth or sponsor events)• THC levels can be displayed• Provinces can regulate as well

• Will this happen?• Initial federal tax revenue is projected at $675 million a year (and up).

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Marijuana Legalization – Where Are We?

• Ontario Liberal government response:• Minimum age to purchase, possess or use recreational cannabis – 19 years old (same as alcohol and

tobacco)• Police will be allowed to confiscate small amounts of cannabis from young people• Permitted use restricted to private residences (not in public places, workplaces or when inside a

motor vehicle, but clubs being considered)• Focus will be on education, prevention, diversion and harm reduction (but likely not charges for

“non-trafficking” enforcement)• Cannabis dispensaries to be closed – distribution to be (solely) with the government – the “Cannabis

Control Board of Ontario”

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Possession of Marijuana for Medical Purposes

• If asked by law enforcement now, users of marijuana for medical purposes can demonstrate that they are in legal possession by showing either the label on the marijuana package containing their specific client information or the separate document containing the same information that accompanied the shipment of marijuana.

• The ACMPR regime provides a possession cap of either 30 times the daily quantity of dried marijuana indicated by a health-care practitioner on the medical document, or 150 grams of dried marijuana, whichever is less.

• Access limited to mail from licensed providers or permitted plants.

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“Medical” Marijuana

• Marijuana is not an approved drug or medicine.

• However, Health Canada provides the following summary of symptoms and medical conditions where marijuana is used as a form of treatment:

• severe refractory nausea and vomiting associated with cancer chemotherapy;• loss of appetite and body weight in cancer patients and patients with HIV/AIDS;• pain and muscle spasms associated with multiple sclerosis;• chronic non-cancer pain (mainly neuropathic);• severe refractory cancer-associated pain;• insomnia and depressed mood associated with chronic diseases (HIV/AIDS, chronic non-cancer pain);

and• symptoms encountered in the palliative/end-of-life care setting.

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“Medical” Marijuana

• Remember:• Currently, employees may use prescribed narcotics when at work (including opioids such as oxycodone or

codeine)• Most employers don’t really know or understand the impact of most of these drugs on employees – nor do they

ask

• Is there any difference?• Yes and No

• No, marijuana is not “prescribed” by a doctor• It is not typically time-limited in its “prescription” or authorized for curative reason (i.e. a supplemental

treatment)• However, “authorized use” must be administered by/through a health practitioner for treatment of another

medical condition

• Recreational marijuana will blur the line further:• Medical vs. recreational vs. addiction

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Medication at Work

• Disclosure of permitted possession and/or use of medical marijuana can be required:• if effects of medical use of marijuana (as with a prescribed drug) impact the employee’s ability to

perform their work; or• if current policy prohibits use or possession of such drug at work (employee must confirm that

he/she is authorized).

• What if an employee discloses use or possession (or is found out)?• You can ask for the reason for use or possession to confirm whether possession/use is:

• a breach of established policy;• a safety issue; or• an accommodation issue.

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Accommodation: Legislative Framework

• A legal duty to accommodate is imposed by various statutes, including:• the Canadian Human Rights Act;• the Ontario Human Rights Code; and• the Workplace Safety and Insurance Act.

• Ontario’s Human Rights Code provides that every person has a right to equal treatment with respect to employment due to a disability, and addiction is a form of disability.

• Accommodation is a multi-party inquiry (employee, employer and union (if any):• An employee has an obligation to inform the employer of the need for accommodation. The

employee must provide sufficient information to substantiate the employee’s limitations and restrictions and the impact on his or her ability to perform work functions. The employer must accommodate to the point of undue hardship.

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The Duty to Accommodate

• Employers have a duty to accommodate individuals who encounter barriers due to a protected ground, up to the point of undue hardship.

• Not only employers must participate, but the employee (and union – if any).• Failure by the employee to participate or act reasonably is taken into account when determining if

the employer has met its duty.

• Accommodation could be required if:• use of marijuana is a medical treatment (as part of accommodating the medical restriction/disability

that is being treated); or• use of marijuana is an addiction.

• Recreational use is not an accommodation or human rights issue.

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Recent Case Law – Marijuana in the Workplace

• French v. Selkin Logging (2015, British Columbia Human Rights Tribunal)

• Facts:• French was a heavy equipment operator for a logging company (a safety sensitive position and work

environment).• The employee was a cancer survivor who self-medicated with marijuana daily.• The employee was caught in possession of marijuana after a vehicle accident, and admitted to daily

use as a treatment for pain.• Despite the company’s “zero tolerance” policy, the employee stated that he would continue to use

marijuana for pain treatment. When told that he could not, he quit and filed a human rights claim.• Selkin Logging denied any discrimination contrary to the Code. It insisted that it never prevented

French from attending any medical appointments, and that French never had authorization to possess marijuana.

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Recent Case Law – Marijuana in the Workplace

French v. Selkin Logging

• Decision:• The Tribunal accepted that French was disabled that he used marijuana for pain management and

that a “zero tolerance” policy that did not consider accommodation as part of its procedure could be discriminatory and not applicable.

• However, the Tribunal found that French did not have a prescription, his doctors had not told him to smoke marijuana and that there was no evidence that any doctor had condoned his smoking at work.

• Because French’s marijuana use was not authorized (and was therefore illegal), it would be undue hardship for the company to be made to allow illegal drug use.

• Regardless, the policy was applicable and not discriminatory as the safety obligations were a bona fide occupational requirement for this employee.

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Disciplinary Behaviour and Accommodation

• While the employer manages the accommodation process, accordingly, the employer must take proactive steps to determine whether misconduct is related to a disability.

• For example, an employee cannot be disciplined for behaviour connected to their physical or mental disability.

• If at the time of the investigation, discipline or termination, the employee advises the employer (or the employer is aware) that they suffer from a disability, prior to implementing discipline or a termination, the employer should consider:

• whether the misconduct was causally connected to the disability; and, if so• whether they can accommodate the employee without undue hardship (throughout this second

inquiry, employers can consider the employees’ commitment to facilitating the accommodation process).

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Disciplinary Behaviour and Accommodation

• Ontario Nurses’ Association and London Health Science Centre (Grievance of BS)

• Facts:• In this case, a nurse, with two and a half years of service was found to have stolen narcotics for her

own personal use, falsified records and attended at work while impaired. This misconduct took place on several occasions in the course of one year.

• When the employer commenced the investigation process, the nurse advised the employer that she had suffered various drug addictions.

• The employer discharged the nurse’s employment and the matter went to arbitration.

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Disciplinary Behaviour and Accommodation

• Ontario Nurses’ Association and London Health Science Centre (Grievance of BS)

• Decision:• Because the nurse suffered an addiction and because the arbitrator held that the nurse’s addiction

was causally connected to the misconduct at issue, the employer was required to satisfy a further burden, namely, whether they were unable to accommodate the nurse’s disability without undue hardship.

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Discipline and Accommodation

• Should the employer have known the employee was suffering from a mental health (i.e. addiction) disability?

• Factors to consider:• Did the employee previously self-disclose issues with alcohol, drugs or mental illness?• Was there any medical information regarding mental health issues in the employee’s personal file?• Was there previous physical demonstrations that suggested the employee was struggling with

alcohol, drugs or mental illness (i.e. attending work while impaired)?• Did the employee’s conduct lead to medical questions/inquiries?• If policy requires disclosure, was the employee asked – as there is a duty of the employer to inquire

where there is reason to believe the employee is subject to a disability.

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Side Effects of Marijuana Use

• Health Canada provides the following warnings for the use of medical marijuana:• Marijuana is not an approved therapeutic product.• Using cannabis or any cannabis product can impair concentration, ability to think and make

decisions, reaction time and co-ordination.• Use has an effect on motor skills, including the ability to drive.• Use can also increase anxiety and cause panic attacks, and in some cases cause paranoia and

hallucinations.• Cognitive impairment may be greatly increased when cannabis is consumed along with alcohol or

other drugs that affect the activity of the nervous system (e.g., opioids, sleeping pills, other psychoactive drugs).

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Safety Considerations

• Consider the impact of using a prescribed substance where an employee holds a safety-sensitive position or where the employee may cause risk if impaired.

• No carte blanche to smoke/ingest and get high on the job.

• Safety considerations are likely to be front and centre.

• When can an employer say “no” despite the demonstrated need for medical marijuana?• Safety• Bona fide requirements of the position not being met• Point of undue hardship

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Recent Case Law – Marijuana in the Workplace

• Calgary (City) v. Canadian Union of Public Employees (CUPE 37) (2015, Alberta Grievance Arbitration Award)

• Facts:• A City of Calgary employee was employed as a heavy equipment operator. In 2009, the employee was prescribed

marijuana for medical purposes. He informed two of his supervisors of his disability and that he had been issued a medical marijuana permit.

• He continued to operate heavy equipment without incident until 2011, when representatives of management became aware of his medical marijuana use. The employee was immediately removed from his position and placed in a non-safety-sensitive position while the City undertook an investigation.

• After completing its investigation into the matter, the City determined that the employee had a marijuana dependency that required treatment. He was provided with two options:

• continue in a non-safety sensitive position; or• consult with a doctor for further assessment of his dependency.

• The employee’s union filed a grievance demanding that the employee be returned to his previous position.

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Recent Case Law – Marijuana in the Workplace

• Calgary (City) v. Canadian Union of Public Employees (CUPE 37)

• Decision:• At arbitration, the City argued that the employee had been removed from his position because of a

substance dependency, not simply because he used medical marijuana. The arbitration board disagreed. It concluded that the results of the City’s investigation failed to prove that the employee had substance abuse issues or that he had been impaired while on duty.

• The arbitration board also found that the employee had followed the City’s policy by reporting his use of medical marijuana to his supervisors, and that he had worked without incident or signs of addiction for almost two years. As a result, the arbitration board reinstated the employee to his original position as he had demonstrated his ability to function in a safety-sensitive position.

• His possession of a permit for medical marijuana did not alone disqualify him from holding his position.

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Recent Case Law – Marijuana in the Workplace

• Calgary (City) v. Canadian Union of Public Employees (CUPE 37)

• While the arbitration board awarded the grievor all lost wages, overtime and any accompanying pension benefits, it also imposed the following conditions on the grievor’s return to work:

• The grievor will provide proof that he has properly maintained his Class 3 licence with Alberta Transportation.• He will be subject to random substance testing to measure influence or recent use of marijuana, and will be

subject to appropriate discipline for any violation.• He will be subject to random work performance monitoring in accordance with the employer’s policy.• The grievor, if he has not already done so, will arrange, in concert with his personal physician, for the reduction of

his monthly medical marijuana, as allowed for by his Health Canada permit to 10 grams per month, or effectively 0.3 grams per day, as recommended by Dr. Oluwadairo.

• After review of the findings of this Board and the reinstatement provisions set out above, if the employer remains concerned with the issue of dependency, it may be resubmitted to Dr. Oluwadairo for review.

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Accommodating Medical Marijuana

• Remember:• Accommodation for medical marijuana is not dissimilar to use by the employee of a drug prescribed by a doctor

that can have impact on safety/performance.• Treat the employee’s disclosure confidentiality, but ask the employee for proof of their prescription (i.e. purchase

history from a licensed provider) without getting into their specific diagnosis.• Ask the employee about his/her medication usage:

• When and how often they need to take the product?• Will it be at work?• How will they take it? How can they take it (in what form)?• Where will they take it?• How long do they anticipate needing to take it?• What are the side effects and restrictions when using – and for how long?

• Accommodation of medical marijuana requires an objective assessment as to whether such use affects the employee’s ability to perform his/her job duties and how such duties (or other positions) could be modified to accommodate the employee.

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Accommodating Medical Marijuana

• Remember:• Get information, including medical note/report outlining the above and discuss their needs.• Tailor questions and request for information to the needs of your workplace.• Accommodation of marijuana use (which is not medically supported) depends on whether that use

is the result of an addiction.• If the employee’s use of marijuana is an addiction, the employer’s obligation is similar to

accommodation of any substance abuse issue.• Accommodation for an addiction involves time for and attendance at addiction treatment (not use of

the narcotic at work).• If the employee’s use of marijuana is not an addiction and not medical, then discipline, including

termination, could result.

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Policies

• Review and update policies on drug/alcohol use in the workplace.• Once recreational use permitted, policy and discipline cannot be based only on “illegality.”

• Update policy regarding disclosure of use of marijuana and any other narcotic.• Update policies regarding use and disclosure of prescription drugs that may impact employee

performance or ability to work safely.• Update policies regarding accommodation (with a clear reference to rehab process, programs and return

to work).• Employers must balance the need to maintain a safe work environment with the employee’s right to

accommodation of a disability – up to the point of undue hardship.

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Use at Work

• What do you do if an employee exhibits signs of impairment at work?• If an employee exhibits any sign of impairment at work, that employee should be interviewed and if

there is any concern about his/her intoxication he/she should be advised to cease work immediately and provided with an escort home.

• Take notes from all people who had interacted with the employee (and include a description of their behavior).

• Prior to re-attendance at regular work, the employee should be interviewed and asked about his/her intoxication/impairment at work and to provide an explanation (EAP should be offered).

• If no explanation is offered (i.e. the employee does not advise of any medical condition or addiction), then the employee could be subject to discipline for having been impaired at work or consuming drugs/alcohol at work.

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Use at Work

• What is your work culture?• How does it mesh with your drug/alcohol policy? Permissive? Zero Tolerance?• Consider this: if employees are regularly allowed to consume alcohol during work hours, is the use of

cannabis any different if it doesn’t lead to impairment?• How do your policies address lax enforcement? Discipline? A warning? • Is everyone treated the same: Is it ok for the CEO to have a three-martini lunch, but the vaping employee

is terminated?

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Recent Case Law – Marijuana in the Workplace

• Old Dutch Foods Ltd. and Unifor, Local 2001 NB (Haines)• In this case, the employer terminated the employee after learning, by way of an unauthorized search of the

grievor’s unattended jacket, that she was in possession of marijuana on the company’s premises.• There was no collective agreement or policy in place that addressed workplace searches or possession of

prescription or illegal drugs.• The union grieved the termination on the basis that: i) the employer’s search breached the grievor’s privacy

rights; and ii) the grievor initially said the marijuana was “planted,” but later said it was for medical purposes –despite the fact that her authorization had expired two years prior to the search.

• The arbitrator reinstated the grievor on the basis that the manner in which the search was carried out was improper. However, because of the grievor’s inconsistent and unconvincing story, the arbitrator did not order damages for loss of pay or benefits, nor credit the grievor with loss of seniority.

• The arbitrator explained that in the absence of an express or implied clause in an employment or collective agreement, a policy, or past practice, employers do not have a common law right to search employees or their belongings absent consent.

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Recent Case Law – Marijuana in the Workplace

• Stewart v. Elk Valley Coal Corp., 2017 SCC 30• The Supreme Court of Canada reviewed the reasons of the Alberta Human Rights Tribunal regarding

the termination of an employee who worked in a mine operated by the Elk Valley Coal Corporation.• The mine operations, as well as the employee’s job driving the loader, was accepted as being safety

sensitive.• The company had implemented an alcohol and drug use policy and all employees were expected to

disclose any dependence or addiction issues pre-emptively, prior to an incident occurring.• The policy did not punish employees for disclosing any drug or alcohol addiction.• The policy supported substance abuse treatment and return to work.

• Stewart was involved in an accident with his loader and post-incident testing found that he had cocaine in his system.

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Recent Case Law – Marijuana in the Workplace

• Stewart v. Elk Valley Coal Corp., 2017 SCC 30• The employee admitted to having used cocaine during his days off and, after the incident, he

claimed that he thought he had an addiction.• The employee had not, however, disclosed his use of cocaine or his presumed addiction prior to the

accident, a requirement of the policy.• After the incident and investigation, the employee’s employment was terminated under the policy’s

“no free accident” rule.

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Recent Case Law – Marijuana in the Workplace

• Stewart v. Elk Valley Coal Corp., 2017 SCC 30• The majority of the Supreme Court of Canada agreed with the Albert Human Rights Tribunal’s

conclusion that this employee’s termination was acceptable under the policy.• It was found that the employee’s addiction did not prevent him from being able to understand

the terms of the policy or to disclose his addiction prior to an incident.• The employee, notwithstanding the drug use (i.e. at times he was clearly not under the

influence) was able to make a conscious choice of not disclosing and understood the consequences.

• Termination was not because of the employee’s addiction, but because of his failure to abide by the terms of the policy.

• Also, the policy itself was reasonable and an important component of the company’s safety regime in a safety-sensitive work environment, and preserving the policy as a deterrent also had merit.

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Recent Case Law – Marijuana in the Workplace

• Stewart v. Elk Valley Coal Corp., 2017 SCC 30• Two judges of the Supreme Court of Canada disagreed that the termination was not connected to

drug use/addiction, but still upheld termination on accommodation grounds because the policy:• permitted self-disclosure without immediate penalty;• permitted the employee to obtain treatment;• allowed the employee who completed treatment to return to work (after showing evidence

that he/she had completed treatment); and• even in the event of a breach of policy, allowed discretion for the employee to re-apply and be

considered for return to work.• One judge, however, found that the termination was contrary to human rights protection, as it was

unreasonable to conclude that an employee suffering from an addiction was capable of self-reporting.

• Denying the addiction is often a key symptom of the addiction.

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Policy and Drug Use Disclosure

• What should a drug disclosure policy have?• Include a clear and express statement that the policy promotes safety and deters unsafe behavior.• The policy should encourage/require employees to disclose substance abuse issues, without fear of

reprisal or discipline, including in situations where employees may be using illicit drugs, but may not consider themselves to be addicted.

• Provide for and set out a process for employees to ask for and obtain treatment.• Maintain confidentiality.• Provide for a procedure for appropriate accommodation, follow-up and return to work.

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Drug Testing

• When is it allowed?• Pre-employment (if a safety-sensitive position).• Reasonable cause (likely permitted in each case).

• Reasonably supported to believe (probable cause) that employee is under the influence while at work.

• Post incident (likely permitted in each case).• Random (safety sensitive only and very limited).

• Not all business or duties will be considered “safety sensitive” for the purpose of permitting random testing.

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Recent Case Law – Drug Testing

• Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 (CanLII)• The Ontario Superior Court of Justice denied the union’s injunction motion to stop the employer’s

policy of universal random drug and alcohol testing.• The policy would randomly test 20% of the TTC workforce who occupied safety-sensitive positions

(i.e. drivers and operators).• The Court readily accepted the public interest safety issues raised in support of the random testing

policy:• “drug or alcohol misuse at the TTC carries the complication that any accident can have tragic

consequences for many people.”• This is not going to be automatically applicable to all workplaces.

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Recent Case Law – Drug Testing

• Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 (CanLII)• Importantly, when the court refused to issue the injunction on random testing, the TTC filed

significant evidence in support of such testing, including:• that there existed a “culture of drug and alcohol use” within the TTC’s workplace;• several TTC employees advised management that they did not want to work with individuals

that they believed were impaired;• statistics showed that there had already been 116 positive or refused alcohol or drug tests for

employees in violation of the prior policy;• that, despite employee applicants being advised of mandatory pre-employment drug testing,

2.4% of external applicants failed such tests; and • the deterrent impact of testing was shown to statistically reduce the risk of impairment persons

causing an accident.

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Drug Testing Policy and Application

• What can you do regarding enforcement of a drug use and drug testing policy?• Use reputable and reliable testing and/or testing provider.• Ensure tests are conducted promptly.• Ensure test samples are handled and exchanged properly.• Ensure that test samples are maintained.• Ensure that privacy is maintained.• Ensure communication regarding testing results.

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Drug Testing Policy and Application

• Testing must be connected to the valid purpose of minimizing or deterring impairment at work to ensure job safety.

• Conduct an objective review of the “safety sensitivity” of the workplace and job.• Review and document foreseeable safety risks and potential impact of impairment.• Review and support why testing is necessary to reduce these risks.

• Have other less invasive methods been tried first?• Consider limits on testing.

• Post incident and/or reinstatement.• Include disclosure obligation and reference to treatment under companion workplace policies.

• Drug testing policy not an island, but part of overall HR drug use/accommodation policies.

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Drug Testing Policy and Application

• Understand the limits of testing:• Present impairment vs. past use.• For marijuana…

• currently, there is no readily-accepted test that shows present impairment; and• there is no readily-accepted level of THC that is universally accepted as demonstrating

impairment.• Be ready to address post-positive claims of medical treatment and/or addiction.

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Final Thoughts

• Take a deep breath (pun intended). • Review not only your policies, but the culture of your workplace.• What is it that you need to be most concerned about?

• Safety? Competency? Compliance with the rules?• Stay current on the law and the technology. Follow the progress of legalization.• Don’t make hasty decisions. Always take a step back before acting.

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Lorenzo LisiPartner, Aird & Berlis [email protected]