Why an Employer Should Review Its Internal Policies in Light of Bill C-45?
This article originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc. on June 11, 2018.
Despite the approaching entry into force of Bill C-45 legalizing the use of recreational cannabis in Canada, a recent publication by the Canadian Centre on Substance Use and Addiction (CCSA) concluded that a majority of employers have not yet addressed and evaluated their internal policies and practices with respect to substance abuse in the workplace.
However, sooner than later, Canadian employers will have to review and amend their internal policies. In this context, and at this time, they should consider the following elements.
First and foremost, every employer should remember that according to a 2013 Supreme Court ruling, even in “highly safety sensitive” or “inherently dangerous” workplaces, in the absence of a demonstrated problem with substance use, an employer does not have the right to impose random testing to its employees. However, in such a “dangerous” workplace, an employer will be entitled to test individuals who occupy a safety sensitive position in three particular circumstances, namely:
- where the employer has reasonable grounds to believe that an employee was impaired while on duty;
- where the employee was directly involved in a workplace accident or significant incident; or
- where the employee returns to work after treatment for substance abuse, in compliance with the negotiated terms of a return-to-work action plan.
Considering the above, and in the absence of government guidance on the likely impact of cannabis legalization on workplaces, employers need to be proactive and address this matter with the assistance of experts who will help them revise their internal policies. Said experts should conduct an assessment of the work environment to determine ways to ensure that the legalization of cannabis will not impact the quality of the work performed nor the worker’s health and safety. The recommendations made by the expert will therefore enable the employer to address potential problems at the source and thus to review the internal policies with all the relevant tools to ensure the effectiveness of the proposed changes.
In addition to these specific elements, and in line with the recent decision Stewart v. Elk Valley Coal Corp.1 from the Supreme Court, employers should also impose to their employees the obligation to voluntarily disclose the usage of any substance, whether relating to alcohol, drugs or prescription medication. Such an obligation of disclosure would allow the employer to act preventively and manage potential problems upstream and not reactively.
Moreover, employers must also hold mandatory training sessions for all employees (regardless of the level of risk associated with their position) and make sure that all employees sign clear commitment forms confirming that they have understood the terms of the policy and they undertake to respect them. In this sense, the revised policy must also include a provision to the effect that the employer adopts a zero tolerance approach in the event of a breach of the policy, and that any breach may lead to disciplinary measures, up to and including dismissal for cause.
Finally, in addition to the legalization of cannabis which is already causing headaches to many, Canadian employers might need to revisit their drug and alcohol policies sooner than later in light of new case law. In fact, the awaited Supreme Court ruling in the Suncor case may change the state of the law on the issue of random drug and alcohol testing. This particular case regards the implementation of a random drug and alcohol testing policy in a high-risk work environment where a general problem with substance abuse was recognized. Canada’s highest court may modify, in light of the upcoming legislation, the application criteria for random drug testing which could represent a new era for many Canadian employers.
1 2017 CSC 30.