The new law allowing for legal cannabis use will focus the employer’s right, or not, to conduct workplace drug tests. It is clear that the employer has the right to deny the right of its workers to use cannabis at work, presuming it is not mandated as a means to treat a medical disability, as reviewed in a prior post.
A recent decision of the Ontario Superior Court has considered this issue.
The facts which brought the case to the court were somewhat complicated. The employer in a unionized setting had initiated a drug and alcohol testing policy for employees in a safety sensitive environment and for other specified positions. It allowed for testing 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 union brought an injunction application to the Superior Court requesting an order that the policy be stopped pending the conclusion of the arbitration. This application was dismissed. The judge hence allowed the policy to be active pending the arbitration case.
A prior Supreme Court of Canada decision 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.
In this instance, the Ontario Court concluded that the balance of convenience favoured the employer’s policy as in the public interest. The issue is not concluded as the arbitrator must ultimately decide the issue.
Alberta – A Differing View Pending Arbitration
This same issue is being debated in the Alberta courts. 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, as is the case in Ontario, yet with an opposite status pending the conclusion of this case.
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. This latter issue has not been clearly defined.
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.
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.
To and Fro
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.
For advice on this complicated issue from either side, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
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