VANCOUVER CALGARY EDMONTON SASKATOON REGINA LONDON KITCHENER-WATERLOO GUELPH TORONTO VAUGHAN MARKHAM MONTRÉAL Pot Talk: Marijuana in the Workplace Agenda 1.Latest Developments 2.Marijuana in the Workplace a. Stats b. Recreational c. Medicinal 3.Drug Testing a. Overview b. Types of Testing c. Implications of a Positive Test d. Privacy Concerns 2 Latest Developments Update from the Miller Thomson Cannabis Industry Group lead Cannabis Act (Federal) Ontario Cannabis Act Measuring impairment 3
4 Marijuana in the Workplace Stats: The Landscape Health Canada collects information under the Access to Cannabis for Medical Purposes Regulations ( ACMP regulations ) made to the Controlled Drugs and Substances Act Q1 2017 total number of registrations with licensed producers increased nationally from 174K to 201K In Ontario, 77K to 86K increase of over 10% Health Canada market data from June 2017 indicates that the number of registered users was up 32% from the previous quarter and has grown exponentially since the first documented quarter in June 2014. Not known how legalization will impact recreational use, but an increase in users is expected 5 Recreational Marijuana Use Federal government has announced intention to legalize in future for non-medical use Non-medical marijuana should be treated the same way as use of alcohol/other illegal drugs pursuant to drugs/alcohol policy Prohibited during work hours Employees cannot come to work under the influence of marijuana 6
7 Recreational Marijuana Use Employer Concerns: Decreased Work Performance Attendance Discipline Safety Operating machinery Driving Medical Marijuana Use Governed by ACMP Regulations: Medical practitioners provide a medical document with their contact and licensing information, general patient information, prescription (grams) and the period of use Individual registers with a producer and provides them with their prescription: dried, fresh, or oil Labels on shipments contain the same information as the medical document Where an employee claims medical need for marijuana, the request should be treated in the same matter as any other request for medical accommodation 8 Medical Marijuana Use Medical use and human rights issues: Addictions to drugs or alcohol are considered disabilities under the Ontario Human Rights Code (the Code ) The Code prohibits discrimination against people with disabilities and perceived disabilities in employment, etc. Addiction triggering accommodation obligations, up to the point of undue hardship Medical use requiring accommodation Medical use as a component of a treatment plan 9
10 Challenges for Employers Testing Drafting policies for use of marijuana in the workplace The problem with zero tolerance policies Requiring medical proof of need for marijuana use during work hours Medical proof of how often / how much the individual needs for medical reasons Consider protocols for accommodating marijuana use at the workplace Consider safety of co-workers / public Consider benefit policies for whether marijuana should be covered by medical plan Testing 11 Current Law The goal is safety Alcohol and drug testing by employers is a developing area of the law Current drug testing cannot establish the level of impairment THC in the system does not necessarily mean impairment Drug and alcohol testing policies and programs may be discriminatory based on addictions or perceived addictions. Negative consequences can include discipline, loss of confidentiality through the testing process Testing may be justifiable if it is a bona fide requirement of the job 12
13 Current Law: BFOR Supreme Court of Canada test: 1.Adopted for a purpose that is rationally connected to performing the job; 2.Adopted in an honest and good faith belief that it is necessary to fulfilling that legitimate work-related purpose 3.Reasonably necessary to accomplish that legitimate work-related purpose. To show this, the employer must demonstrate that it is impossible to accommodate the person without imposing undue hardship upon the employer. What is a Safety Sensitive Position? Highly specific to the workplace Consider where there is a risk of harm in performing the duties to co-workers or the public The greater the risk of harm the more likely testing is to be upheld 14 Competing Interests Employer Interests Health and Safety (OHSA) Performance Management Employee Interests Ontario Human Rights Code Accommodation Privacy Concerns 15
16 Types of Testing Pre-Employment Testing Discouraged by the Ontario Human Rights Commission as it may be prima facie discriminatory May be allowed for safety sensitive positions (BFOR analysis) but the threshold is unclear Medical testing during hiring must be focused on completing the essential duties of the job A positive test is not enough evidence to show that someone would attend work under the influence of alcohol or drugs 17 Random Testing Legal requirements for random testing: Safety sensitive position Evidence of enhanced risk or general problem Minimal or non-existent staff supervision Accommodation for employees who test positive Breathalyzers have been allowed because they are accurate and minimally intrusive No similar mechanism for measuring impairment for drugs such as cannabis 18
19 Random Testing: Recent Decisions Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 The court dismissed the union s application for an injunction prohibiting random drug and alcohol testing no irreparable harm The effect of the decision is that the TTC can randomly test employees in safety-critical positions until an arbitrator hears a policy grievance regarding random testing Drivers of subways, busses and street cars and TTC employees in maintenance and control Court found that the procedure and methodology for testing were reasonable, and minimally invasive due in part to cut-off levels Held that safety of the public and TTC employees outweigh the diminished expectation of privacy Employees in non safety administration roles, remain subject to testing with reasonable cause, or after an incident Random Testing: Recent Decisions Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313 Employer implemented random drug testing of employees in safety-sensitive roles Positions include operating heavy haul trucks and operating cable and hydraulic shovels Employer presented evidence of more than 2,200 incidents involving drugs or alcohol had taken extensive measures to address drug and alcohol concerns prior to implementation Union argued that drug testing was a gross violation of workers rights by invading their privacy and that data regarding the pervasive workplace problem was not sufficiently targeted to BU members Majority of arbitration tribunal ruled in favour of the union employer appealed Current case law suggests that courts are increasingly favouring random testing over privacy rights when safety is a concern 20 Post-Accident / Near Miss Testing Employers have a legitimate interest in testing after an accident, or when there is evidence of dangerous behavior that resulted in a near miss. This interest is limited to: Safety-sensitive positions Investigations after accidents must include all possible causes Accidents without an apparent external cause 21
22 Reasonable Grounds Objective evidence linking impairment and safety-sensitive job duties Example of objective evidence: Seeing someone using alcohol or drugs at work Employee appearing or acting in a way that is consistent with someone using alcohol or drugs Someone smelling like alcohol or drugs Substances or substance paraphernalia in the vicinity of the employee or where they work Employees still need to be given a chance to explain their behavior Implications of a Positive Test 23 Discipline / Termination A positive alcohol or drug test should not necessarily result in automatic termination Automatic policies for termination, reassignment or inflexible discipline are unlikely to be enforced by courts Inquire as to whether there is a reason for the positive test 24
25 Privacy Concerns Individual Privacy Test results are medical information, and cannot be disclosed publicly or to other employees Employers receive the results of the alcohol and drug test, but should not receive any additional information that may have been recorded by the tester Employers are not generally entitled to know the diagnosis of employees requesting accommodation, and there are limits to the information they can request after a positive alcohol or drug test Any biological materials should be retained by the 3rd party testing company and ultimately destroyed 26 Testing: Best Practices Actively supervising employees Recording observations and complaints by employees Protecting confidential information Not being distracted by the specific substance being used Fully investigating incidents Avoiding assumptions 27
MILLERTHOMSON.COM 2017 Miller Thomson LLP. All Rights Reserved. All Intellectual Property Rights including copyright in this presentation are owned by Miller Thomson LLP. This presentation may be reproduced and distributed in its entirety provided no alterations are made to the form or content. Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be requested from the presenter(s). This presentation is provided as an information service and is a summary of current legal issues. This information is not meant as legal opinion and viewers are cautioned not to act on information provided in this publication without seeking specific legal advice with respect to their unique circumstances. VANCOUVER CALGARY EDMONTON SASKATOON REGINA LONDON KITCHENER-WATERLOO GUELPH TORONTO VAUGHAN MARKHAM MONTRÉAL MILLERTHOMSON.COM 2017 Miller Thomson LLP. All Rights Reserved. All Intellectual Property Rights including copyright in this presentation are owned by Miller Thomson LLP. This presentation may be reproduced and distributed in its entirety provided no alterations are made to the form or content. Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be requested from the presenter(s). This presentation is provided as an information service and is a summary of current legal issues. This information is not meant as legal opinion and viewers are cautioned not to act on information provided in this publication without seeking specific legal advice with respect to their unique circumstances. VANCOUVER CALGARY EDMONTON SASKATOON REGINA LONDON KITCHENER-WATERLOO GUELPH TORONTO VAUGHAN MARKHAM MONTRÉAL