By Jennifer Brown, AdvocateDaily.com Senior Editor
Airline pilots and air traffic controllers are subject to a new policy banning the use of all forms of cannabis while on or off duty, but it may be overreaching, says Toronto employment lawyer Doug MacLeod.
Following the legalization of cannabis in October 2018, Transport Canada conducted a review, and in July of this year announced a new policy prohibiting flight crews and controllers from consuming cannabis, including medical marijuana, for at least 28 days before being on duty. A flight crew member is defined as a “pilot or flight engineer of an aircraft” while a controller is an air traffic controller.
“The question is if you use medicinal cannabis for pain and you take some at 10 p.m., and it clears your system by 8 a.m., but a trace amount remains are you impaired? The answer is no, then the policy overreaches in that regard,” says MacLeod, principal of MacLeod Law.
The policy defines cannabis use as the ingestion or application of any product, including cannabidiol (CBD), by any method including smoking, vaping, eating, or applying to the skin for any purpose, including medical, recreational, or other non-medical reasons.
According to Transport Canada, the 28-day policy is “aligned with the best available science and is consistent with other government departments’ approach to legalization of cannabis including the Department of National Defense and The Royal Canadian Mounted Police.”
“This includes how the body gets rid of cannabis, how long it can be detected in the body, and when the brain returns to normal after using cannabis,” the policy states.
The Canadian Aviation Regulations prohibit crew members from working while under the influence of alcohol within eight hours of consumption, or if using drugs (illegal or legal) that impair their faculties and put safety at risk.
“Alcohol and cannabis are both legal and impairment for both decreases over time. Why are the legal standards different under federal legislation?” MacLeod tells AdvocateDaily.com.
When recreational cannabis became legal last year, some airlines said employees in safety-critical areas, including flight operations and aircraft maintenance, would be prohibited from using cannabis and cannabis products at all times, both on-duty and off-duty, Edmonton City News reports.
In job postings, other carriers indicated all employees must abstain from consuming cannabis, in and outside of the workplace.
“Some employers introduce policies to send a message,” says MacLeod. “Can an employer introduce such a policy, and can they terminate an employee for violating the policy? It’s one thing to put a policy in place, but the question is, do you enforce it?
“If there is an accident and the company conducts drug testing on the employee in question and proves there was cannabis in their blood, it doesn’t mean they’re impaired,”he says. “However, it would be a violation of the policy because the employee is prohibited from using the drug, so it would then become a discipline matter.”
At that point, MacLeod says the employee could claim the employer cannot justify disciplining them.
“If you’re not an addict, could you be disciplined for having pot in your system? I think the answer is yes, but the question is, could an employer justify a with-cause termination? One way to strengthen an employer’s rights would be to introduce a specific penalty clause which provides that the employee agrees that having any cannabis in their system is just cause for termination,” MacLeod says.
“For a long-service employee who is not employed in a safety-sensitive position, with no track record of being disciplined, and has traces amounts of cannabis in their system, I have real doubts about whether an employer could prove just cause absent an enforceable specific penalty clause,” he adds.
Employees in all sectors who use medical cannabis should disclose that information to their employer to avoid running afoul of any company policies, MacLeod says.
“The policy needs to clearly explain to employees that if they need cannabis for medical reasons, it has to be disclosed,” he says. “And, if you fail to disclose it, you’re subject to discipline like everyone else.”
MacLeod says employee unions can also grieve management policies and ask an arbitrator to strike them down.
“I would be surprised if a union doesn’t grieve employee discipline that is meted out under these new policies,” he says.