equipment. Given that the purpose of workplace drug test-ing
policies is to reduce workplace accidents, employers
operating in dangerous work environments should seriously
consider adjusting their policies to include impairment from
recreational marijuana use while at work. It is important
to recall though, that even in safety sensitive work environ-ments,
random drug testing or termination due to drug
usage is still unjustified in the absence of reasonable cause.
Employers should be aware that a zero-tolerance approach
to drug use may not be legitimate as it is inconsistent with
the principles of just cause and progressive discipline, and
may also violate human rights requirements.
Testing methods
Another cause of concern for employers will be identifying
appropriate and accurate methods of testing for marijuana
use. To date, the recognized methods of testing include the
cheek swab method, breathalysers and urinalysis. Each of
them has their advantages and disadvantages with respect to
immediacy of results (or lack thereof) and accuracy.
Several labour arbitrators and decision-makers in the
human rights field have concluded that a positive drug test
on its own is not conclusive of actual impairment and does
not, in itself, constitute just cause for discipline or discharge,
depending on the circumstances of the case.
Off-duty conduct
Employers must exercise caution in terms of regulating the
off-duty conduct of employees. Courts have found that it is
unreasonable to impose general policies that provide for
discipline or discharge if employees engage in recreational
marijuana use while off duty or on vacation. Such policies
are seen as regulating the morality of employees and will not
be justified.
On the other hand, some courts have held that if there
is a sufficient nexus between the off-duty conduct and the
employee’s responsibilities, discipline may be justified. For
example, if an employee in the transportation industry is
charged with impaired driving while off-duty, that may be
cause for disciplinary action.
Accommodation
The issue of accommodation becomes relevant where an
employee uses medicinal marijuana or can establish that
they have an addiction to marijuana.
If an employee uses medicinal marijuana on the recom-mendation
or advice of a medical professional, the employee
may be treating a condition or illness that would be con-sidered
a physical or mental disability. The employee needs
to provide medical documentation to support their use
of medicinal marijuana. An employer who does not allow
the employee to use medicinal marijuana in the work-place
would be engaging in discrimination, unless they can
establish a bona fide occupational requirement, and would
be required to accommodate the employee to the point of
undue hardship.
As such, employers should consider their current
workplace accommodation policies and establish a clear
LEGAL
RC SWIVEL
FOR HARD ROCK DRILLING
BOOTH 173
Convert Drilling Rigs for RC
Down-the-hole-hammer
Cluster Drill
Conventional Rotary Bit
600 Ferguson Avenue North
Hamilton, Ontario, Canada L8L 4Z9
Tel: 1.905.528.7924 Fax: 1.905.528.6187
Toll Free: 1.800.668.9432 (in Canada and USA)
www.berminghammer.com
Email: bfssales@berminghammer.com
90 Q1 2018 www.pilingcanada.ca
/www.berminghammer.com
/www.pilingcanada.ca
