Drugs and Alcohol in the Workplace. September 20, 2018 Zaheer Lakhani and Rishi Bandhu

Transcription

1 Drugs and Alcohol in the Workplace September 20, 2018 Zaheer Lakhani and Rishi Bandhu

2 Overview Cannabis Legislation Legal distinction between Medical and Recreational Marijuana Accommodation obligations Drug and Alcohol testing Off duty Drug Use and Abuse to the Workplace Drafting and Updating Workplace Policies

3 Legalization of Recreational Marijuana Federal government sets rules for legal access and possession, as well as industry standards new legislation: Bill C-45, The Cannabis Act; and Bill C-46, An Act to amend the Criminal Code

4 Bill C-45- The Cannabis Act 18 years of age or older, you are legally permitted to buy, possess, and grow marijuana for recreational use including: possession up to 30 g of dried cannabis, or equivalent in nondried form sharing up to 30 g of legal cannabis with other adults, and growing up to four cannabis plants per residence (not per person) sale of edibles will be permitted within one year following the coming into force date (October 17, 2018)

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6 Bill C-45-The Cannabis Act federal government responsible for setting industry-wide standards and rules including: what types of products allowed for sale provinces and territories responsible for developing, implementing, maintaining and enforcing systems to oversee sale and distribution

7 Bill C-46 developed to strengthen impaired driving laws such as: providing police with power to demand oral fluid sample at roadside checks if reasonable grounds to suspect

8 Legalization of Recreational Marijuana Provincial government sets rules for sale, distribution and consumption Bill 174: Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017 recreational cannabis legislation with 4 schedules

9 Bill 174- Schedule 1 enacts Cannabis Act, 2017 sets minimum age to use, purchase, possess and cultivate in Ontario at 19 prohibits use in public places, workplaces, or inside a vehicle (exempts consumption of medical cannabis) restricts sale of cannabis to Ontario cannabis retailers established under Schedule 2

10 Bill 174- Schedule 3 repeals Smoke-Free Ontario Act and the Electronic Cigarettes Act, 2015 replaces them with new Smoke-Free Ontario Act, 2017 applies to tobacco, vapour products, medical cannabis, and other prescribed products and substances prohibits smoking or vaping in, amongst other areas, enclosed workplaces

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12 Bill 174-Schedule 3 enclosed workplaces: the inside of any place, building or structure or vehicle or conveyance, or a part of any of them: a) covered by a roof b) that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time, and c) that is not primarily a private dwelling

13 Bill 174-Schedule 3 Section 12 states that subject to exemptions, no person shall do the following in prohibited places outlined in subsection 2, including enclosed workplaces: smoke or hold lighted tobacco smoke or hold lighted medical cannabis use an electronic cigarette consume a prescribed product or substance in a prescribed manner

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15 Bill 174-Schedule 4 amends Highway Traffic Act to toughen drug impaired driving laws in Ontario includes zero tolerance for drivers under 22 years of age, novice drivers (G1, G2, M1 or M2 license holders) or those who operate commercial vehicles

16 Medical vs. Recreational Marijuana employer may prohibit recreational marijuana in company policies prescribed marijuana may be permitted in the workplace employees can t consume marijuana whenever and wherever they choose, even if marijuana is medically authorized employees cannot be impaired, especially in safety-sensitive positions or workplaces

17 Occupational Health and Safety Act duty of employer: statutory obligation to provide a safe workplace provide information, instruction and supervision to a worker to protect the health or safety of the worker ensure they are compliant with human rights legislation

18 Occupational Health and Safety Act duty of employees: to perform work safely and to report any hazards to their supervisor or employer

19 Duty to Accommodate section 5(1) of Code prohibits discrimination based on a person s disability drug and alcohol addictions are disabilities protected by the Code employer has a duty to accommodate employees who test positive for alcohol or drugs duty to accommodate is triggered once employee establishes a prima facie case of discrimination

20 Duty to Accommodate employer must show that discrimination is justified as a bona fide occupational requirement: discriminatory standard adopted for a purpose rationally connected to performance of the job employer adopted the standard in an honest and good faith belief that it was necessary to fulfill the legitimate work related purpose standard is reasonably necessary to the accomplishment of the legitimate work related purpose. Employer must show that employee cannot be accommodated without undue hardship

21 Duty to Accommodate employers are not required to accept an employee s preferred accommodation, as long as they can propose a reasonable alternative that would similarly meet employee s needs cannot disclose private medical information such as information about prescriptions, related disabilities, or results of a drug test to persons who do not require access, unless necessary for the accommodation employers have a duty to inquire employees have a duty to inform

22 Accommodation vs. Safety of Workers employees may seek accommodation and use medical marijuana to ease disability-related symptoms, even if in safety-sensitive position employer has a duty to accommodate to the point of undue hardship however, having employees using medical marijuana at work while in safety-sensitive positions may amount to undue hardship due to potential health and safety risks employer may need to seek out other solutions such as alternative work

23 Aitchison v. L & L Painting and Decorating Ltd. employee was a seasonal painter working for a commercial contractor he worked on 37 th floor of a high rise building and had a valid prescription to use medical marijuana to treat pain due to a degenerative disc disease he would smoke on his breaks, without the employer's knowledge or permission he was caught by his supervisor smoking while on a swing stage suspended 37 floors above ground

24 Aitchison v. L & L Painting and Decorating Ltd. he was sent home for violating the company s zero tolerance policy the policy prohibited the use of legal or illegal drugs and alcohol and prescriptions that could cause impairment while at work due to the safety sensitive nature of the job employee did not request accommodation for using medical cannabis employment was terminated for breaching the company s policy

25 Aitchison v. L & L Painting and Decorating Ltd. HRTO found no discrimination although the employee s condition was considered a disability, at no time did the employee request that he be accommodated to use medical marijuana even if accommodation was requested, due to the safety sensitive nature of the work, the use of medical marijuana would have imposed undue hardship

26 Aitchison v. L & L Painting and Decorating Ltd. tribunal also concluded there was no evidence that employee suffered from an addiction to marijuana and that his doctor was not aware of his safety sensitive position, and would not have authorized the prescription had he known tribunal concluded that the employee did not have absolute right to smoke marijuana at work, even if he had a valid medical prescription

27 Stewart v. Elk Valley Coal Corporation (Supreme Court of Canada) Stewart worked in a safety-sensitive mine as a heavy machine operator employer implemented policy which required employees to disclose addiction issues before any alcohol or drug related incident could occur employees who self-disclosed were to be offered treatment employees who did not self-disclose in advance of an incident and then tested positive, would be terminated

28 Stewart v. Elk Valley Coal Corporation (Supreme Court of Canada) goal of policy was to encourage those with addictions to come forward and get treatment before an incident could occur Stewart was involved in a workplace accident and then tested positive for cocaine he later admitted to his employer that he used cocaine the night prior and believed he was addicted to cocaine Stewart did not disclose this information prior to the incident in accordance with their policy, Stewart was terminated

29 Stewart v. Elk Valley Coal Corporation (Supreme Court of Canada) Stewart argued he was terminated because of his addiction which was discriminatory the Alberta Human Rights Tribunal held that he was terminated for breaching the policy, and held that the existence of an addiction in and of itself did not establish prima facie discrimination the Supreme Court of Canada upheld the Tribunal s ruling

30 Stewart v. Elk Valley Coal Corporation (Supreme Court of Canada) the decision confirms the right of employers to be proactive and prevent workplace accidents by implementing clear policies that require self-disclosure of addictions decision confirms that a finding of discrimination requires a connection between employer action and ground of discrimination

31 Alcohol and Drug testing in the Workplace no legislation in Canada which oversees drug and alcohol testing in the workplace employer must balance obligation to provide a safe work environment with an employee's privacy and human rights drug and alcohol testing can only be justified in narrow circumstances, specifically if there are health and safety concerns in which people are doing safety-sensitive work

32 Alcohol and Drug testing in the Workplace Pre-employment Reasonable grounds/post-incident Random Rehabilitation Plan

33 Pre-employment testing Ontario Human Rights Commission s position: testing as part of initial screening process prohibited under subsection 23(2) of the Code testing can t predict that someone will come to work impaired can lead to refusing to hire someone based on an addiction or perceived addiction, which may be prima facie discriminatory

34 Pre-employment testing if testing for safety-sensitive positions, a positive test should not lead to revoking an offer of employment or other negative consequences testing should be part of larger qualifying process must meet duty to accommodate for people with addictions

35 Reasonable grounds/post-incident testing acceptable in specific circumstances, such as: where there are reasonable grounds to suspect impairment on duty following an accident or significant incident

36 Reasonable grounds/post-incident testing reasonable grounds should be informed by objective evidence, such as observed behaviours or other indicators, including: seeing someone use alcohol or drugs at work an employee appearing or acting in a way which is consistent with someone impaired (i.e. someone smelling like alcohol or drugs) substances or substance paraphernalia by the employee or area where they work

37 Hibernia Platform Employers Organization v. CEP, Local NLCA 45 case relates to helicopter safety on flights between the land base and the Hibernia offshore oil platform in a period of five weeks between December 2014 and January 2015 there were four incidents of helicopter baggage manifest errors the employer and the union deemed the last error as a significant incident, and said it contravened their drug and alcohol policy

38 CEP, Local 30 v. Irving Pulp & Paper Ltd SCC 34 Irving Pulp implemented a random and mandatory alcohol testing policy in the workplace under the policy, 10% of employees in safety sensitive positions were to be randomly selected for unannounced breathalyzer testing each year a positive test could result in disciplinary action, including dismissal the Union brought a grievance to the New Brunswick Labour and Employment Board

39 CEP, Local 30 v. Irving Pulp & Paper Ltd SCC 34 at the arbitration level, the grievance succeeded through a balancing process of analysis it weighed the interests of the employer against the privacy interests of the employees it considered the lack of evidence of an actual problem with alcohol use in the workplace the decision of the Board was appealed to the New Brunswick Court of Appeal, resulting in the setting aside of the Board s award

40 CEP, Local 30 v. Irving Pulp & Paper Ltd SCC 34 at Supreme Court, the majority of Justices concluded that alcohol testing in the workplace was unwarranted without sufficient cause an employer may test a given employee if there is reasonable cause to believe an employee was impaired during work, was involved in an accident at work or returned to work after a substance abuse treatment program Justice Abella, employed a balancing of interests proportionality approach

41 CEP, Local 30 v. Irving Pulp & Paper Ltd SCC 34 Justice Abella noted that there was a definite lack of an alcohol abuse problem to justify the unilateral introduction of a random testing policy safety gains were minimal in contrast to the intrusive impact on employee privacy

42 Suncor Energy Inc. v. Unifor Local ABCA 75 in 2012, Suncor implemented random drug and alcohol testing for workers in safety sensitive positions at some Fort McMurray sites Union filed grievance stating testing violated worker s privacy

43 Suncor Energy Inc. v. Unifor Local ABCA 75 in 2014, arbitration board found in favour of Union holding that Suncor did not demonstrate enough safety concerns to justify random testing random testing was not automatically justified in dangerous workplaces

44 Suncor Energy Inc. v. Unifor Local ABCA 75 Suncor applied for judicial review, which held that majority decision was unreasonable Unifor appealed the decision on judicial review to Alberta Court of Appeal on judicial review, Court quashed arbitration decision and ordered a new hearing by panel

45 Suncor Energy Inc. v. Unifor Local ABCA 75 Court found that majority decision was unreasonable: misapplied balancing exercise from Irving by imposing more stringent requirements than those contemplated by SCC erred by considering only evidence that demonstrated substance abuse problems within bargaining unit and ignoring evidence of substance abuse problems within broader workplace majority failed to consider all of the relevant evidence

46 Takeaways random testing is not automatically justified on the basis that the workplace is dangerous and employees are in safety-sensitive position evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace is also required testing policy not justified if the risks to safety in the workplace do not outweigh the severe impacts on employees privacy

47 Rehabilitation plan (post-treatment) testing justified after returning to a safety-sensitive job after treatment for alcohol or drug addiction employee may be expected to meet conditions when they return to work, which may include unannounced testing conditions should be tailored to individual s circumstances in order to meet duty to accommodate

48 Alcohol and Drug testing in the Workplace knowledge of an employee s drug or alcohol use will require the employer to take action towards the employee given due diligence obligations under the OHSA discipline is the most obvious form of demonstrating due diligence employers should consider alternative risk management tools, such as counselling before intrusive testing

49 Alternative Methods of Testing cognitive testing such as performance tests related to the job observation-based testing training for managers/supervisors to determine the signs of impairment peer monitoring

50 Drafting and Updating your Policies well drafted workplace policies are crucial in setting out what is and isn t acceptable regarding the use of drugs and alcohol in the workplace

51 Creating Great Policies as in the case of Stewart v. Elk Valley, employers should create a clear policy which allows the employee to self-disclose an addiction prior to a drug related incident employer may be able to rely on that breach of policy as a ground for termination it s also important to draft a termination letter that will rely on the ground of a breached policy and not solely on a positive drug test

52 Creating Great Policies aside from medical marijuana which requires legal authorization, a ban on the use of recreational marijuana in the workplace is enforceable under a workplace policy but employers need to be prepared to address potential issues such as accommodation in the case of addiction

53 Creating Great Policies policies that include testing or make determinations about employees based on drug or alcohol use may be unlawful if positive test would result in termination without consideration of accommodation a drug testing policy could be discriminatory if the employer can t demonstrate it is a bona fide occupational requirement of the job

54 Creating Great Policies policies should set out the process for disclosure of marijuana use for medical purposes and outline accommodation processes employers can mange risks by implementing policies that encourage employees to disclose drug addictions policies can outline processes to be followed if impairment is suspected

55 Creating Great Policies employees should also be trained on workplace polices to ensure they are aware of their roles and responsibilities employees should be required to sign an acknowledgment confirming they have read and understand the company policies

56 Questions?