With the legalization of marijuana slated for July 1, 2018, construction employers have a lot of questions.
One that keeps popping up is the right to conduct drug testing.
Stefanie Di Francesco, an associate at McMillan LLP in Toronto, presented a seminar at the Construct Canada conference held recently in Toronto billed Cannabis on Job Sites: Legal Insights on Impacts of Upcoming Legislation.
She said while drug testing can be considered discriminatory, an employer can justify it if they meet a three-part test: the employer has adopted the test for a purpose that is rationally connected to the performance of the job; the employer adopted the particular test in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and the test is reasonably necessary to accomplish that legitimate work-related purpose.
“Generally speaking, drug and alcohol testing is permissible for safety sensitive positions when there is an accident or a near miss of an accident or where there is suspected impairment and there is a risk to health and safety,” said Di Francesco.
“Drug and alcohol testing won’t be appropriate for non-safety sensitive positions.”
The take away from my presentation is to continue to treat marijuana as you would treat any other impairing substance in the workplace
— Stefanie Di Francesco
According to Di Francesco, three questions to ask before testing are: is there a rational connection between testing and job performance? Is there an objective basis for believing the employee’s behaviour (i.e. lateness, erratic behaviour) at work are related to impairment? And, is there an objective basis to believe that the degree, nature, scope and probability of risk caused by the dependency will adversely affect the safety of co-workers or the public?
Testing that has no demonstrable relationship to job safety and performance has been found to violate code and a “rational connection” is key, Di Francesco explained.
“Employers may be thinking it’s always rationally connected because the employee’s productivity and just their general performance is not going to be great if they are impaired,” explained Di Francesco.
“That’s not the test in this case. The test is tied to safety risks.”
Employers will often have other policies that can be used to discipline employees for poor performance, Di Francesco pointed out. Also, if safety is an issue, employers don’t immediately need to turn to drug or alcohol testing. There are other courses of action, she said.
“The appropriate step would be to have whoever is responsible for that employee take them aside and meet with them, conduct an assessment as to whether there is a level of impairment issue to be concerned about,” Di Francesco noted.
“If there is a concern, you send the individual home in a cab…and talk to them about it the next day.”
If a drug test is used, she stressed the importance of conducting tests in a manner that protects the privacy and dignity of the employee being tested and to get a third party to conduct the test such as a licensed physician, social worker or a drug and alcohol abuse counsellor. The result of the employee’s test will be provided as soon as practicable to the employee and results should be disclosed only to people who need to know, Di Francesco added.
She pointed out employers have been managing substances like alcohol and tobacco in the workplace for years.
“The take away from my presentation is to continue to treat marijuana as you would treat any other impairing substance in the workplace.
“You’ll continue to have and enforce your workplace policies to restrict use in the workplace,” said Di Francesco. “Any restriction that limits the way an employee can use or possess marijuana is still applicable today, it will remain applicable when the new legislation is passed.”