Drug testing and the legalization of marijuana in the workplace: where do we stand?

M^e Rhéaume Perreault, CIRC, Adm. A., Fasken Martineau DuMoulin

Last April, after several months of preparation and speculation, the federal government tabled its bill on the legalization of cannabis for Canadians 18 years of age or older. According to An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, Canadians will be entitled to possess and share up to 30 grams of legal dried cannabis. However, the provinces will be responsible for controlling, and might even, as the case may be, prohibit, the sale thereof on their territory.

There is no question that the legalization of cannabis will have an impact on the workplace. It is possible that the passage of this legislation will lead to increased use in the workplace.

One should, however, clarify that the legalization of marijuana will not result in employees being entitled to use this substance before or during their work shift since its use impacts performance. As with alcohol, which can be legally consumed, an employer may nonetheless prohibit its use.

As a result, employers will be urged to implement policies on drug use, in particular to meet their health and safety obligations and to prevent any risk of accident. However, these policies will have to take into consideration the state of the law regarding drug testing. To date, random drug testing is forbidden in Canada except in very specific circumstances.

Essentially, the case law has confirmed that an employer is entitled to require an employee to submit to a drug test in order to determine his or her ability to discharge his or her duties safely, namely in the following instances:

• upon returning to work after a long absence due to an addiction problem;
• if the employer has reason to believe that the employee represents a potential danger to himself or herself or to his or her co-workers;
• if the employer has reason to believe that the employee is under the influence at work;
• following a serious incident or accident;
• as part of a last-chance agreement in the context of drug or alcohol addiction; or
• if provided for by the legislation (e.g.: airline pilots).

It is desirable to establish a policy to inform employees of the position of the organization regarding drug and alcohol use. The dissemination of such a policy avoids any ambiguity and represents an aggravating factor in the event of a breach by the employee of his or her duty to meet normal standards of performance, attendance and security. However, a drug test should ideally only be administered by professionals to an employee who is a marijuana user. According to some studies, traces of marijuana are detectable in a person’s urine up to five days after use, in the case of an occasional user, and up to six weeks or more, in the case of a habitual user.

Hence, it is sometimes difficult to prove that an employee was under the influence of drugs at the time of administration of the test. Of course, we may expect that more accurate and better performing tests will be developed.

In light of the above, we recommend that corporations establish a simple policy reminding all interested parties of their rights and obligations.

This text is provided to you for information purposes only. CFIB cannot be held responsible for its final content or for any subsequent use and interpretation thereof by the company or a third party.

M^e Rhéaume Perreault

Rhéaume Perreault is recognized as one of the best labour and employment lawyers by Woodward /White's Best Lawyers in Canada directory for several years. He holds a degreein law from the Université du Québec à Montréal. He also holds a Bachelor'sdegree in industrial relations from the Université de Montréal