Cannabis and work: your rights and duties

In the health and social services system, APTS labour relations counsellors are noting the emergence of policies on drug and alcohol use in the workplace. The MSSS has sent out a standard policy that employers can adapt to their own circumstances. Certain measures cannot be applied, realistically, while others are simply not in line with the law. For example, measures citing zero tolerance mean that nothing should show up on a drug or alcohol screening, even though it has been proven that substances can be detected long after a person is under the influence. A closer look at the situation is in order.

In institutions where policies are applied that fail to comply with the current legislation, the APTS advises the employer in a letter that such policies are discriminatory and without foundation. Management is put on notice that the union reserves the right to contest their implementation.

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In fact, the principles of law that apply haven’t changed with the legalization of cannabis. The same rule of proportionality is at play, balancing the interests of workplace safety (that stem from the Civil Code of Québec and the Act respecting occupational health and safety) with employees’ right to privacy (that stem from the Charter of human rights and freedoms). As the Charter supersedes all other laws, the right to privacy must be taken into account in priority. It may nonetheless be weighed in relative terms when the situation so warrants, if there are valid grounds for thinking that workplace safety and the expected work performance are compromised.

The Goodyear affair in 2007 confirmed that the employer must avoid acquiring personal or private information about employees (e.g., through drug or alcohol tests), without just cause. The employer has to have a valid reason for investigating and must ensure that any violation of privacy is kept to a minimum. Requiring random samples from employees is a violation of their privacy, integrity and dignity, as these tests may reveal many things that the employer has no right to know. The Godbout judgment handed down by the Supreme Court of Canada in1997 is clear: privacy guarantees individuals a personal sphere of autonomy within which they can make choices that solely concern them. That’s the case with the use of drugs or alcohol outside work hours. To put it another way, the employer has nothing to say about it as long as the person’s work performance is assured.

Screening tests

Employers are not allowed to violate employees’ privacy by imposing screening tests, unless they have valid and rational reasons to believe that an employee’s faculties are impaired. They may nonetheless ask employees to undergo tests in the following situations:

• when, in a dangerous work environment, there are reasons to think that an employee’s capacity to perform her or his work safely may be affected by alcohol or drug use;
• when a work accident seems to be related to such use;
• when an employee who was off work because of a dependency problem returns to work.

The fact that an employee fails to turn up for a drug or alcohol test cannot be considered equivalent to testing positive and cannot automatically lead to dismissal. The objective of a drug or alcohol test is to ensure safety and see to it that an employee is not working with impaired faculties – not to prevent drug or alcohol use at all times. At the very most, the employer could assess whether a disciplinary measure could be applied.

Management rights also vary depending on the risks inherent in the employee’s position. A person who operates heavy machinery is monitored more closely than one who does office work.

As drug and alcohol tests are still inaccurate at this point in time, it will undoubtedly be difficult for the employer to demonstrate that the level of drugs or alcohol found in the body affects the person’s faculties, or that the person is still under the influence.

In general, proven use of drugs on the work premises is considered to be serious misconduct and results in dismissal unless there are major mitigating circumstances such as seniority, quality of work, and a spotless disciplinary record.

In conclusion, employees can use drugs or alcohol in their private life (hopefully taking steps to avoid becoming dependent). But they can’t do so at work, nor can they work with impaired faculties. And the employer can’t impose tests whenever he feels like it, given the privacy rules established in case law.

This said, reporting to work under the influence of drugs or alcohol should be avoided at all costs. Being in an impaired state could affect work performance and increase health and safety risks for the employee in question and for others.

R E A D  T H E  F O L L O W I N G  :
In the wake of cannabis becoming legal