Cannabis-use ruling sets dangerous precedent for employers concerned with public safetyPosted by On

A recent British Columbia arbitrator’s order sets an unfortunate and dangerous precedent for employers (and citizens) concerned with public safety.

The arbitrator’s order pertained to a SkyTrain attendant who tested positive for cannabis use during a routine medical examination. TransLink, SkyTrain’s operator, was ordered, pending a full decision on the matter, to stop randomly drug testing the employee for THC.

SkyTrain attendants are typically responsible for mundane activities such as fare inspection, but, in an emergency, they can be required to take control of a train. In that context, an impaired employee could cause a tragic massive accident.

TransLink does not prohibit off-duty cannabis use by its employees and there is no evidence that the employee in question was ever impaired while at work. But where safety concerns are involved, employers have every right to be abundantly cautious. Quite apart from the human tragedy, imagine the liability that TransLink would have if there was an accident involving injuries and deaths. 

This is not a contest between perpetuating a stigma and promoting enlightenment. It is a simple matter of public safety. This arbitrator’s decision gets it wrong, and if followed, has the potential to bring the entire labour arbitration profession into disrepute.

Much has been made of the fact that there is no reliable way to test for cannabis impairment. Some would argue that drug-testing employees for THC, which can remain detectable in the system for up to 28 days after use (and at which point there is no possibility of impairment), is overly broad and an unacceptable invasion of employee privacy. Cannabis, it is argued, is legal, and off-duty workers have the right to indulge as long as they don’t come to work high.

Not so. In fact, the lack of a reliable test for impairment cuts the opposite way — testing broadly for cannabis use is the only way to ensure employees in safety-sensitive positions are not impaired on the job. Legality has nothing to do with it. The fact that a drug is legal does not give all employees the right to use it with impunity, even in their own free time.

When it comes to cannabis, it simply isn’t good enough to tell employers they have to wait to test until they see signs that an employee is impaired at work. It certainly isn’t good enough to tell them they have to wait until an impaired employee causes an accident. In my ire, until the effects of cannabis are better understood, employers are well within their rights to institute outright bans on recreational use for employees in safety-sensitive positions.

However, employers considering an all-out cannabis ban must be sensitive to human rights issues that could flow from that.

The employee in this case was a recreational user, which puts him in a worse position vis-à-vis his right to consume cannabis off-duty than if he had claimed to be an addict, because his employer has no obligation to accommodate purely recreational use. 

Employers do have a duty to accommodate addictions, which are viewed as a disability.

It should also be remembered that some cannabis users use the drug to deal with other disabilities, such as insomnia, anxiety, and chronic pain. In the past, these users have had the benefit of prescriptions for medical cannabis to tie their use to their disability. With the advent of legalization, disabled users now have the option of self-medicating with recreational cannabis. The employer can, of course, require its employees to use other forms of medication that deal with the same ailments. So even a medical marijuana prescription may not be a defence.

The TransLink case suggests that legalization was rushed through too soon, with a view to political gain, rather than as a result of a robust, science-based reconsideration of prohibition. Until the verdict on the short- and long-term effects of cannabis is derived, legal decision-makers ought not to leave employers in the untenable position of having to compromise public safety by shielding employees’ off-duty vices from scrutiny. 

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. The most recent of his six books is Law of Dismissal in Canada.

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