With legalization of marijuana, the legal implications of alcohol & drugs on the workplace is a rapidly expanding area of law. Cannabis legalization involves many issues including, but not limited to: human rights, privacy, and an employer’s ability to manage its work force.
If the experience in other jurisdictions is any indication, legalization of cannabis is likely to result in increased use among Canadians. Cannabis use among British Columbians has already been reported to be the highest in Canada. Increased social acceptability of using ‘pot’ suggests that legalization of cannabis may result in an increased risk of employees appearing at work after having consumed cannabis products. Employees using or selling ‘weed’ to other employees at work are also a concern.
Whether you are an employer or an employee, this is one area in which it is critical that your legal counsel not only have employment law expertise, but also a solid understanding of these issues, and experience handling such cases.
In safety-sensitive workplaces, the critical issue of safety also arises, along with possible vicarious liability and, in cases involving serious safety violations and fatalities, the Criminal Code may also be involved.
An alcohol and drug policy has become an important tool in the safe operation of any business which has workers in safety-sensitive or risk-sensitive positions. Even in workplaces that are not safety-sensitive, an employer may nevertheless be well advised to implement an alcohol & drug policy to make clear what (if any) use it will tolerate. Failure to have such a policy may present greater challenges to the employer’s ability to effectively deal with employees who use drugs or alcohol.
An employer who wishes to commence a drug and alcohol testing program must do so carefully. A well written, properly considered and properly introduced alcohol and drug use policy is a critical component, but is just one of the steps we recommend for employers, particularly those with workers in safety-sensitive positions.
Drug and alcohol testing in the workplace is legal in Canada.
An employee who is concerned that he or she could test positive on a workplace drug and alcohol test should immediately contact a lawyer who is knowledgeable about occupational drug and alcohol testing. Employees who contact such a lawyer immediately will, depending on the circumstances, be in a much better position to potentially maintain their employment. It is particularly important to seek legal advice before speaking with a Medical Review Officer (MRO) following a test.
An employee may be able to successfully challenge a drug and alcohol testing program if, among other things, it treads on areas with which the courts have expressed concern, or was not properly implemented. An employee may also be able to successfully challenge a test and any resulting disciplinary action, if irregularities occur during the testing process. Additionally, employees who use cannabis or other substances for medicinal purposes may attempt to challenge testing or subsequent disciplinary action taken by the employer at the human rights tribunal, claiming discrimination based on a disability or perceived disability.
An April, 2018 report by the Canadian Centre on Substance Use and Addiction indicated that substance use resulted in estimated lost productivity of $7.1 million due to alcohol use and $4.7 million due to illegal drug use. The cost to Canadian employers was estimated to be $15.9 million due to alcohol and $21.8 million due to illegal drugs. It also cited a number of studies which indicate that the the trend for these costs is increasing.
An earlier study by the Substance Abuse and Mental Health Services Administration (SAMHSA) office in the United States revealed that 16.4 million current drug users and 15 million heavy alcohol users work full time. Seventy seven percent (77%) of illicit drug users are employed. 87% work for small businesses. It further revealed that one out of every 6 workplace deaths involve drug or alcohol use, and that substance users are five times more likely to file workers’ compensation claims.
If you are an employer, supervisor or site owner, we understand what your rights are and how to navigate these issues, so that you can rest assured you have on your side the expertise and experience you need to maintain worker safety and keep your business thriving.
If you are an employee or other worker, we understand what your rights are, what an informed employer will look for and is able to require from you, and what your next steps may be.