On Aug. 1, 2018 (maybe) the federal government’s plan to legalize recreational marijuana will come into effect and no doubt, employers will be faced with questions about how to manage weed in the workplace. Do not expect the law to provide employees with carte blanche to get high at work. A recent decision by a labour arbitrator provides a good reason to believe that discipline up to the point of discharge will remain the reasonable response to employees’ drug use.
In University of Windsor and CUPE Local 1001, two janitorial staff were terminated following an investigation into allegations that they had smoked marijuana during their shift. The employees were sitting in one of their cars while on break during a shift at the university. They were approached by campus police and the officer noticed a strong smell of freshly-smoked marijuana. The officer asked the employees if they had smoked marijuana, and if they had any marijuana on them. They initially denied, but once informed that the police would have to be involved, they relented that they had smoked up and handed over a baggie. The employees denied however that they smoked on campus.
The employer investigated and determined that the employees were not being honest, and in fact that they had been smoking marijuana on campus during their shift. The university decided to terminate the employees for just cause, relying on their possession and consumption of an illegal substance on campus, the safety sensitive nature of their position, their access to locked areas of the campus, their proximity to students, the fact that they were not honest about their conduct, and ultimately the employer’s loss of trust in the employees. The last factor was crucial given that the janitorial staff work largely unsupervised.
For its part, the union argued that the university should have abided by the principle of progressive discipline. The employees each had 17 years of service with the employer, and had no notable disciplinary history. Further, while the janitors worked without supervision, their jobs could hardly be considered safety-sensitive. The union argued for a more lenient penalty than termination.
The arbitrator stressed that each case involving drug use at work must be determined on its own specific facts, context, and merits. In his own words, the arbitrator stated "There is no simple formula that can be applied in determining the appropriate penalty in cases of illicit drug use at work.” He agreed with the union that the employees were not in a safety sensitive position, but ultimately he agreed with the employer that the employees’ lack of candour and their attempts to mislead the employer destroyed the trust necessary for them to continue working in an unsupervised position. Accordingly, the terminations were upheld.
How will legalization of marijuana affect employment law?
There is no simple answer to that question.
The most significant element of this arbitrator’s decision is that termination for being impaired at work is not automatic, and each case has to be assessed on its own circumstances. If these employees had been contrite and honest about their conduct from the outset, it seems as if the arbitrator would have reinstated them. On the other hand, if they did work in a truly safety sensitive position, perhaps even perfect candour would not have saved them.
The fact that marijuana has historically been illegal for recreational consumption is just part of the equation. Employers can and should, even after Aug. 1, implement workplace policies prohibiting employees from being or becoming impaired at work, particularly in safety sensitive positions.
I can imagine that some ill-considered employees might cockily tell their managers that they are untouchable once recreational pot is legal. That is nonsense. Alcohol is legal, but any employee who gets drunk at work is bound to be disciplined or fired (pending the inevitable ‘disability’ defence). The same outcome will always be possible for any employee who is impaired at work by any other drug, even if legal.
In fact, medical marijuana has been a reality in Canadian workplaces for some time now, and it has been dealt with like any other medication. Certain criteria need to be in place for an employee to be able to use marijuana as a medicine and still attend for work; such as a proper prescription and safeguards for any potential workplace hazards. The same holds true with regard to prescribed opioid painkillers, for example. Even though they are not being taken for recreational use, an employee impaired by prescription medication may not be allowed to work, and if they recklessly attend for work in a safety sensitive position, discipline could result in the right circumstances.
There is no doubt that employers will need to adjust to a new pot-friendly society, but new laws surrounding what adults can consume in their personal time will not automatically re-write decades of legal precedents concerning workplace impairment.
For more information see:
- University of Windsor and CUPE, Local 1001 (Enriquez), Re, 2017 CarswellOnt 2778 (Ont. Arb.).
Michael MacLellan is an associate practicing labour and employment law with CCPartners in Brampton, ON. He can be reached at (905) 874-9343 ext. 251 or firstname.lastname@example.org. For more information on CCPartners and their labour and employment law podcasts, visit www.ccpartners.ca/podcasts.