Considering the recent legalization of non-medical cannabis, employers may wish to implement policies to manage safety risks associated with substance use. However, policies must be carefully crafted and implemented to be considered reasonable and lawful. Below are several outlines of recently implemented policies regarding drug use.
Considering the recent legalization of non-medical cannabis, employers may wish to implement policies to manage safety risks associated with substance use. However, policies must be carefully crafted and implemented to be considered reasonable and lawful.
Arbitrators, mediators and workplace investigators who are asked to navigate situations involving workplace policies regarding the use of alcohol, cannabis, and potentially even other prohibited drugs, look to previous decisions and specific legal principles to make determinations as to the validity of a given policy.
Below are several outlines of recently implemented policies regarding drug use which are useful in order to better understand how courts, tribunals, arbitrators, mediators and workplace investigators deal with these policies.
Examples of Drug & Alcohol Policies in Safety-sensitive Positions
A. Transit Police
The “Fitness For Duty” policy of the Metro Vancouver Transit Police took effect on September 25, 2018. Under this policy, employees must report to work fit for duty and remain so while engaged in Transit Police business and/or on Transit Police premises. Employees are not to consume drugs or alcohol, or misuse medications while:
- on duty,
- on Transit Police Premises
- wearing a uniform
- otherwise engaged in Transit Police business.
Employees are required to disclose developing or existing substance use disorders. Where there is reasonable cause to suspect that an on-duty employee is not fit for duty, testing may be conducted.
B. Vancouver Police Department
The Vancouver Police Department Regulations & Procedures Manual took effect on December 31, 2018. This policy requires employees, contractors, and volunteers to abstain from using alcohol, medication, or controlled drugs in a manner that could render them unfit to perform their duties safely and efficiently. There is no specified time limit. Employees, contractors, and volunteers are required to show up and remain fit for duty for the entirety of their shift and are to self-evaluate whether they are fit for duty. They are to abstain from using alcohol or controlled drugs while working or on break, unless given prior authorization. Random substance testing is not permitted.
C. The Royal Canadian Mounted Police
The RCMP’s Substance Use Policy took effect on October 17, 2018. The policy declares that all RCMP employees must be fit for duty when reporting for work, which includes not being impaired by drugs or alcohol. All RCMP regular members (police officers) are considered to be in “safety-sensitive positions”. The policy dictates that those occupying safety-sensitive positions are to refrain from using non-medicinal cannabis 28 days prior to reporting to work. However, RCMP employees will not be subject to random substance testing.
Important Cases Regarding Random Testing in Drug & Alcohol Policies
A. Disallowing Random Tests
In Teck Coal Ltd. (Fording River and Elkview Operations) v United Steelworkers, Locals 7884 And 9346, 2018 CanLII 2386 (BC LA) (“Teck Coal”), unionized workers occupied safety-sensitive positions within a safety-sensitive work environment. Given this was a mining operation involving obvious and inherent dangers, safety was a top priority. In response to the importance of safety, the employer had instituted compulsory random testing as part of the company drug and alcohol policy. The policy also included voluntary disclosure, random and reasonable cause testing, monitoring agreements, post-incident tests, treatment offered, and discipline for lack of compliance.
In determining whether the employer’s policy was reasonable, the arbitrator considered:
- whether employees’ privacy rights had been infringed;
- whether the employer established a legitimate need for the random testing, to justify the privacy intrusions entailed; and
- whether random testing was a proportionate response to the demonstrable workplace problem.
Regarding the first step of the analysis, the bodily fluids and breath samples required were deemed “highly sensitive matters” to which employees were entitled a reasonable expectation of privacy. Additionally, the requirement that those who failed the drug test meet with specialists and disclose personal health information was found to intrude on employee privacy rights in a “very invasive” manner.
In relation to the second step of analysis, the arbitrator held that there was insufficient evidence of a workplace problem with drugs, alcohol, or general safety. There was no specific evidence linking an incident to an employee who was under the influence of drugs. While there had been a small decline in the number of failed drug tests following introduction of random testing, the arbitrator found that a “modest” improvement was not proportional to the “significant degree of infringement on employees’ privacy interests” required by the testing.
Finally, addressing the third step of analysis, the arbitrator noted that random testing was rationally connected to achieving the goal of enhancing safety, but that no evidence established that other less intrusive means would be equally effective. Ultimately, this led to the arbitrator determining that the benefits resulting from the privacy infringement were not proportional to the harms, even if the employer demonstrated a problem in the workplace.
In light of Teck Coal, policies cannot prescribe random substance testing. Teck Coal indicates that broad concerns regarding workplace safety do not justify policies which infringe employees’ privacy rights if there is no demonstrable workplace problem.
B. Allowing Random Tests
Contrastingly, in Stewart v. Elk Valley Coal, 2017 SCC 30, the employer’s zero-tolerance policy prohibiting drug and alcohol use was upheld. The impugned policy urged employees to disclose dependence or addiction issues so that treatment can be offered. In this case, an employee did not disclose and a drug-related incident occurred. The employee tested positive for drugs. Per the policy, the employee was dismissed. The Supreme Court of Canada found that the employer was entitled to rely on the policy, and that the policy did not discriminate based on disability. Termination occurred not because the employee had a disability (drug addiction), but because of the employee’s refusal to follow the policy. It was noted that the employee’s ability to follow the policy was not impacted by his disability.
There are many different ways that workplace drug & alcohol policies can take form. Some require longer periods of abstention from use than others, and some involve distinctions between being on-duty, in uniform, and/or on break. Legal decisions have both allowed, and disallowed, termination of employees relating to drug & alcohol testing depending on the facts of a case, and application of tests for proportionality.
The nuanced and case-by-case nature of drug & alcohol policies is illustrated by the variety of policies discussed above. If you would like to discuss the implications of the aforementioned decisions and whether a specific policy would be considered reasonable and lawful, please contact Neil Hain.