Cannabis and the Workplace – Drug Testing
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Written on behalf of Peter McSherry
This is the last in our series of posts on the above subject. To date, we have covered:
- Cannabis as an eligible drug under the benefit plan, even when apparently prohibited under the plan;
- Use of cannabis recreationally at work (a bad idea);
- Use of cannabis as a medically prescribed drug at work (allowed under limited conditions); and
- The employer’s duty to accommodate drug addiction and the rights of worker when treated adversely due to the perception of a drug addiction.
Current Status of the Law on Drug Testing
A recent decision of the Ontario Superior Court has considered this issue.[1] In this case, the company, a large public transportation company with the initials TTC, had introduced a policy which allowed it to test employees for drug use in certain safety sensitive positions, where:
- There was good reason to believe the employee was unfit due to use of drugs or alcohol; or
- It was required as part of an investigation into a work related accident or incident; or
- An employee was returning to work following a violation of this policy; or
- An employee was returning to work after treatment for drug or alcohol abuse; or
- An employee has been offered a safety sensitive position.
The policy also allowed for random testing.
The employees’ union tried to stop the policy which was not successful. This was not the final word on whether the policy would be upheld but rather a stop-gap measure until the case would be finally decided. The judge allowed the policy to be active pending the final outcome of the case.
Prior Cases of Note
A previous Supreme Court of Canada decision[2] had held that the employer in a safety sensitive workplace must show a general drug or alcohol problem to allow for random drug and alcohol testing.
This same issue is being debated in the Alberta courts.[3] In this case, the employer had initiated a policy of random testing. After much debate, this question has been sent back to an arbitration for final determination. Importantly, however, the Alberta Court issued an injunction preventing the employer from implementing its drug testing policy until this issue was decided at arbitration. The issue remains live at the present time.
The General View
Companies seeking to implement random drug testing likely must have safety sensitive workplace and be able to show evidence of a substance abuse in the workplace.
It is expected that the criteria for drug testing as set out in the five conditions set out above will survive any opposition. It is the question of random testing generally on an unqualified basis which leads to controversy.
One further recent case has allowed drug testing after a work related accident had occurred.
Employee’s View
Workers subjected to drug and alcohol testing will need to understand their rights to oppose such policies where the workplace is safety sensitive and be aware of the employer’s apparent need to show substance abuse.
Seeing Both Sides Now
This is a difficult issue for both sides of the equation. The need to provide a safe workplace is an important consideration for all parties and the public. Like many issues, the court will look to the balancing of interests and determine when the right of privacy must bend to the higher public issue of safety.
Let Legal Advice Guide Your Actions
This issue of drug testing and indeed drug use at the workplace generally, is clearly complex. Should you face such a case, it is important to take legal advice to understand your rights. If you have questions about such an issue, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation
[1] Amalgamated Transit Union v TTC; The motion for leave to appeal was dismissed on a technical issue as the motion was brought to the wrong court.
