Canada is lighting up the Criminal Code this spring. The introduction of legislation in the House of Commons will begin the process to legalize cannabis for recreational use and lay out the framework for commercial ventures. Although there’s plenty of excitement and a lot of public support for moving forward, legalization raises complex issues requiring careful consideration by all three levels of government in Canada. One of the most crucial issues to get right is workplace safety.
THC, the cannabis component that affects the brain, is different from alcohol. People who use it can stay impaired for longer than they might be affected after drinking alcohol. A recent article in the Canadian Journal of Addiction states that “marijuana consumption is not recommended for persons who perform safety-sensitive tasks,” ranging from operating a motor vehicle to tasks that require high levels of cognitive function and judgment. The authors argue that in “decision-critical” settings, “the cognitive and performance impairment resulting from marijuana use may pose a foreseeable threat to occupational safety.”
We all should be concerned about longer-term impairment and the implications for work.
And yet, Canada’s laws on drug testing in the workplace are a mixed bag.
Most Canadian work settings are regulated by provincial laws, and workers afforded some of the strongest measures in the world to protect their privacy and accommodate their needs. In safety-sensitive workplaces, drug and alcohol impairment is forbidden. However, imagine workplaces that are not obviously dangerous, such as light manufacturing, residential or light commercial construction, financial services or even administrative offices in an era of legalized cannabis use. Employees understandably want to know that the person working next to them is not impaired by drug use, and employers have an obligation to keep their employees safe when at work.
Meanwhile, many jurisdictions in Canada have ruled that employees have a right to privacy when dealing with addiction or other mental health issues. The Ontario Human Rights Commission has gone so far as to say in its policy that, “Drug and alcohol testing policies and programs may be discriminatory based on addictions or perceived addictions. They raise human rights concerns where a positive test leads to negative consequences for a person based on an addiction or perceived addiction.” This is an important distinction and protection but could stand in the way of a respectful system of testing in a new workplace universe.
The general practice in Canada has been incident-based testing, not proactive screening. According to the report of the federal Task Force on Cannabis Legalization and Regulation, released in November 2016, “Drug testing in workplaces can only be used if it is to satisfy bona fide occupational requirements.”
Subsequent to the Suncor Energy and Irving cases in 2013 and 2016, involving random drug testing, there have been a number of related arbitrative decisions which can serve as general guidance for employers. To randomly test, it is up to employers to show there is a generalized workplace problem with drugs or alcohol and that not dealing with the generalized workplace issue will lead to “inherent” dangers in the workplace.
The Ontario Human Rights Commission policy says testing may be permissible if it is:
- Adopted for a purpose that is rationally connected to performing the job;
- Adopted in an honest and good faith belief that it is necessary to fulfilling that legitimate work-related purpose;
- Reasonably necessary to accomplish that legitimate work-related purpose. To show this, the employer must demonstrate that it is impossible to accommodate the person without imposing undue hardship upon the employer.
To be clear, the Irving decision (and the OHRC policy) restricts employer permission for testing (and random testing) in most circumstances.
Nineteen million Canadians go to work every day — and close to 16 million others rely on someone who does. Policy-makers in Canada, in federal, provincial and municipal governments, need to think carefully about the myriad of serious issues arising from the legalization of marijuana. Workplace safety is only one, but it is vitally important. Let’s ensure that workplace safety is considered carefully and dealt with thoughtfully as legalization rolls out.
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