As the possibility of legalizing marijuana in Canada edges closer, the issue of random drug testing in the workplace, there will be an increasing need to work through contentious issues raised by companies and their employees, the TTC, and its’ union, the Amalgamated Transit Union is just one example.
As an employment and human rights lawyer, that has participated in several public forums on random drug testing in the workplace, the competing interests of public safety, personal privacy and legislated human rights protections need continued judicial/legal review to provide clarity on this issue.
Improved clarity, will provide companies involved in safety-sensitive industries with a greater indication of their obligations to employees and the public. The example of the TTC pushing ahead to implement random drug testing illustrates the difficulties involved with regulating behaviours where impairment at work could cause catastrophic damage or loss of life.
The law generally requires that an employer establish actual impairment before discipline such as termination, can be imposed. However, the application of this threshold potentially allows for a devastating outcome if actual impairment can’t be established before an accident occurs. To offset this problem, courts and tribunals have allowed employers to impose certain obligations on employees such as self-identification of drug use. In several instances adjudicators, have upheld terminations where employees have failed to disclose either recreational or medicinal drug use in safety sensitive positions when internal policies require such disclosure.
The recent case of Suncor Energy v. Unifor in Alberta, which held that an employer should be able to introduce random drug and alcohol testing where it can establish that there has been a series of general incidents, is also of note. (This decision is being appealed) These are only some examples which attempt to balance the competing interests of public safety and privacy/human rights protections. They still beg the question as to whether they are satisfactory responses to a situation where a drug induced accident can lead to devastating results.
Other issues which are being adjudicated are whether a company can impose pre-employment or what is known as pre-access drug testing. To date there are decisions in different jurisdictions, with different facts, which fall on both sides of the issue. These questions will become more cogent and urgent with the impending legalization of the recreational use of marijuana. There are already some discernible principles and guidelines arising out of the decisions on this topic.
Random drug testing is commonplace in the United States; it is inevitable that when marijuana is legalized in Canada, it will be introduced here, so employers need to be prepared. As mentioned above the TTC and the ATU are currently dealing with that issue. There will be more to come.
The materials provided on this site are for information purposes only. These materials constitute general information relating to areas of employment law familiar to employment lawyer, Shelley Brian Brown. They do NOT constitute legal advice or other professional advice and you may not rely on the contents of this website or blog as such.