The federal government has announced that there will be marijuana legislation in place by next spring, which should fulfill a campaign promise to legalize marijuana. Marijuana would no longer only be legal for medicinal purposes, but also recreationally. Federal Health Minister Jane Philpott has said that “[w]hile this plan challenges the status quo in many countries, we are convinced it is the best way to protect our youth while enhancing public safety.” So what does this mean for employers? Some may be concerned about employees being impaired by marijuana during working hours.

It seems to be a concern that is on the mind of the TTC as the TTC Board has approved a random alcohol and drug testing policy. This policy is opposed by the Union and we expect the Union will grieve this policy under the applicable collective agreement.

As an employer, if you are considering implementing a random alcohol and drug testing, you should know that except in exceptional circumstances such a policy is generally illegal in Canada. In order for a random testing policy to be acceptable, an employer must show:

• It is a safety sensitive workplace;
• There is evidence of a pervasive substance abuse problem which can be tied to the safety of the workplace;
• Other measures to deter substance abuse have failed; and
• Testing must assess current impairment

Accordingly, an employer has the burden of meeting a very high evidentiary threshold that is extremely difficult to do. The Courts have stated that the unless an employer can show that there is a pervasive drug problem affecting safety that random testing is generally too invasive and harmful to an employee’s privacy rights; the potential harm outweighs the potential good.

However, an employer can generally have a drug and alcohol policy that requires an employee to submit to drug and/or alcohol testing following a significant incident, accident, or near miss, where it is important to identify the root cause of what occurred. In addition, random drug and/or alcohol testing is generally permissible as part of an employee’s rehabilitation plan provided that it is for a specific duration – typically not longer than two years.

 Lessons for Employers

1. If you have a safety sensitive work environment, you may want to have a drug and alcohol testing policy that allows for testing after a significant incident, accident, or near miss.
2. Keep in mind that as employer, you have a duty to accommodate employees with substance abuse problems to the point of undue hardship.  If someone tests positive after an incident, accident or near miss, then you need to consider whether there is a substance abuse problem, which would be considered a disability under human rights legislation.
3. It is unlikely that a random drug and alcohol testing policy will be permissible unless you can show a persistent drug problem in the workplace which can be tied to safety concerns in the workplace.

If you would like to speak to one of our lawyers about a current drug and alcohol policy or implementing such a policy, please contact us at [email protected] or 647-204-8107.