Marijuana at work: Drug testing and safety in a Smart Serve environment

By Jennifer Mathers McHenry

On April 23, 2017, the Government introduced the Cannabis Act in the House of Commons. When the Cannabis Act comes into force, adult Canadians will be able to legally possess, grow and purchase limited amounts of marijuana. The Government intends to bring the proposed legislation into force no later than July 2018.

So, what does this mean for Canadian employers? We know this legislation will impact most, if not all, employers to some degree. According to the 2012 Canadian Community Health Survey – Mental Health (CCHS-HM), 12.2 per cent of Canadians age 15 or older (about 3.4 million people) used marijuana in the past year[1]. That figure represents a substantial portion of the workforce.

The fact is that with any new situation, knowing exactly what to do and developing best practices and lawful policies and procedures for dealing with legal marijuana will require some trial and error – and after those errors, very likely a few actual trials resulting in legal precedents which we will have to guide us going forward.

Meanwhile, and with a view to trying to avoid landing in one of those early groundbreaking and precedent-setting trials, all employers should turn their minds now to crafting policies which contemplate and regulate the lawful use of marijuana. This article is not legal advice, and before you put pen to paper I would recommend hiring a lawyer who specializes in employment law. However, as you start to turn your mind to how your establishment wishes to react and respond to the legalization of recreational marijuana, here are a few things that may not be on your radar which you should keep in mind:

  1. It is vital to ensure any policies and procedures are Human Rights Code compliant. Medical marijuana is already legal and should be treated no differently than other prescription medications. An employer must, therefore, distinguish between medical and recreational use, and must also bear in mind that drug and alcohol addiction and abuse can themselves be medical conditions which attract a duty to accommodate the employee.
  2. Employers operating establishments licensed to serve alcohol must in particular turn their minds to policies regarding impairment in the workplace in light of the statutory and common law civil liability such a business may attract should an impaired server fail to comply with the Liquor License Act.
  3. It may be tempting for the prudent employer to consider implementing a drug testing policy. However, in Canada it is exceedingly difficult for most employers to conduct drug testing. There are solid policy reasons for this: such tests are a serious intrusion upon the privacy of the employee.

a) Random drug testing, in particular, has a very high threshold and, generally speaking, will only be justifiable in environments where the workers subject to the policy are in “safety sensitive” positions where there is a danger to themselves, their colleagues or the public. Does someone serving alcohol to patrons who may thereafter drive constitute a safety sensitive position due to Smart Serve requirements? It isn’t clear because it has yet to be decided by the courts, and while I can certainly see an argument in support of that position, it is far from clear that it would succeed. In non-safety sensitive workplaces, it is even more challenging to justify drug testing and I would go so far as to say random drug testing in such an environment is virtually prohibited in Canada;

b) In a non-safety sensitive environment an employer may be able to justify a policy and practice of drug testing in limited circumstances (ie. Following an incident of some kind, such as an apparently impaired person in a Smart Serve role), but even then an employer would have to show, among other things, that such a test was being done in good faith and was reasonably necessary for the particular workplace or situation.


About the author:

Jennifer Mathers McHenry is a Partner in the Colson Group at Teplitsky Colson LLP. She and her team regularly advise employees and employers with respect to all aspects of the employer/employee relationship including: offers of employment, human rights obligations, changes of control, M & A, executive and other compensation issues, resignations, terminations of employment, constructive dismissals, and post-employment fiduciary and contractual obligations. Jennifer is a skilled litigator and negotiator with a business-minded and practical approach that is designed to help her clients achieve their goals, mitigate their risks, and most importantly, succeed in their work or business life.

Special thanks to Rhea Kamin for her help with this article. Rhea is an employment lawyer and associate in the Colson Group at Teplitsky Colson LLP.

6 thoughts on “Marijuana at work: Drug testing and safety in a Smart Serve environment

  1. The daily use of Cannabis medicine results in a complete tolerance to the psychoactive effects of THC due to the receding of CB1 receptors in the central nervous system, specifically the brain, and thus there is no impairment in the ability to operate a motor vehicle or heavy equipment.

  2. The Canadian prime minister promised to use best practices and best science in the formation of our government’s cannabis policy but that is not what is happening.

    Our government is being misinformed by organizations that are pervaded by negative bias against all forms of cannabis use and as a result, our legislation we will be full of flaws based on gross misconceptions regarding how cannabis affects individual human physiology.

    Current legislation seems more fixated on the potential profits generated by the emerging recreational Cannabis industry rather than the many medical benefits that cannabinoid therapy could provide to a large segment of the Canadian population.

    Please research phytocannabinoids, the endocannabinoid system, and look up patent 6630507, just for starters, before making any assumptions about Cannabis Use and general health and DO NOT let unfounded fear and negative bias block access to the many medical benefits of Cannabinoid Therapy.

  3. Hmm.. let’s see here: in the section loosely defined as “a few things you should keep in mind,” the author writes: “An employer must, therefore, distinguish between medical and recreational use, and must also bear in mind that drug and alcohol addition and abuse…” where she likely intends to say, “drug and alcohol addiction…”

    In part 3, same section, the author urges, “It may be tempting for the prudent employer to consider implementing a drug testing policy…” while noting that such policies are considered an invasion of privacy in Canada (by law). Such a suggestion may be interpreted to mean that one solution would be to implement an informal drug testing policy. Don’t do it. If you can’t tell if your emplyees are high on MJ: 1. how well do you know your employees? 2. what’s the difference? It’s service, not doctoral-level epidemiology, son.

    Next up, the statement: “I would go so far as to say random drug tests in such an environment is virtually prohibited in Canada…” where the subject is plural “tests” and therefore the predicate should be “are” not “is.”

    Of chief concern with legal/insurers setting the terms of debate is that civil liberties are always on the line, especially when a business is anxious about impending legislation. A wait-and-see approach may not seem the best option here, but, believe me, letting drug testing into your workplace environment can have disproportionately bad outcomes (e.g. YOU just might be the next one in line for drug testing!). In all, I would wait before panicking over this one.

    My bottom line is, if you think bartenders aren’t getting high before work, you don’t know bartenders!

  4. There is NO LAW regarding drug and alcohol testing in Canada. It is fair to state that it is easier to implement random testing within safety sensitive environments but ANY WORKPLACE can have (and SHOULD have) a drug and alcohol policy which can include such testing as post-incident, pre-access, reasonable cause etc. MANY employers within Canada have drug and alcohol policies which include testing in these type of specific situations. What is the most important is to have a clear policy which is COMMUNICATED to each worker (and signed off on), DOCUMENTATION is of utmost importance, and well trained supervisors who know what to look for and what to do if they are concerned there is an issue with an employee. The Drug and Alcohol Testing Association of Canada can give you info about this if you are interested, information, knowledge and documentation are key.

  5. I am not against Drug and Alcohol Testing however employers need to test for impairment and not past use. It is not fair to someone that might have smoked a joint 2 weeks earlier and still fails a piss test.

Leave a Reply

Your email address will not be published. Required fields are marked *