On October 17, 2018, the federal government legalized the recreational use of cannabis, making Canada the second country in the world to legalize pot after Uruguay.
While many are hailing this as a step forward for public safety—one of the government’s main stated reasons for legalization is to keep profits out of the hands of organized crime—some employers have expressed concern that more employees will come to work stoned. Certain employers have gone as far as to purport to ban their employees from consuming cannabis at all, even off-duty.
Westjet and Air Canada have prohibited staff in safety-sensitive positions (including pilots, flight attendants, and mechanics) from using cannabis at any time. The RCMP has banned its members from using cannabis within 28 days of scheduled shifts. Other police forces, such as the Halifax Regional Police, have followed suit.
Bans on cannabis use outside the workplace raise questions about an employer’s ability to regulate employees’ off-duty conduct, and are likely to be forcefully contested by unions and workers across the country.
Employers are only allowed to regulate off-duty conduct that is likely to negatively affect an employer’s legitimate business interests. In safety-sensitive positions, where an employee’s impairment on the job could lead to an accident that harms other employees, customers, and/or the public, employers have a right to prohibit employees from using any drugs or substances during their off hours that could lead to them being impaired at work. However, this is a limited right—unless an employee has an addiction, or an employer can show that there is a significant and systemic problem with substance use at the worksite, employers are not allowed to demand total abstinence from their employees.
Employers who impose total bans on cannabis use may have difficulty justifying these before labour arbitrators. A ban on the use of cannabis products 28 days before a scheduled shift, or at any time during one’s employment, will capture cannabis use that does not lead to impairment while on duty. There are also privacy concerns: urine and blood tests for cannabis are more invasive than breathalyzer tests for alcohol, which means that over-use of screening could infringe on workers’ rights to bodily privacy.
The difficulty that employers face, however, is that there is no test for cannabis impairment. Technologies only exist to detect the presence of cannabis compounds that can linger for weeks after exposure. Employers may feel that the only way they can be really sure that their safety-sensitive employees are stone-cold sober is by a total prohibition.
It remains to be seen where the law will come down on legal pot and safety-sensitive work. In the absence of more precise or less-intrusive testing technologies, is there a case to be made that where safety is absolutely critical, employers have no choice but to impose outright bans? Or does that go too far, capturing off-duty conduct that is none of an employer’s business? These issues will have to be hashed out in the context of specific facts, and we should expect years of litigation before the smoke (or vapour) clears.
The content of this article is intended to provide a general guide to the subject matter and does not comprise legal advice.