As workplaces across Canada scramble to create rules to deal with legalized cannabis, labour experts are predicting there will be plenty of push back, including legal challenges.
Canada will become the second country to legalize recreation cannabis on Wednesday, prompting public- and private sector companies to modify existing substance-use policies or draft new ones.
In response, the country’s largest private-sector union, which represents thousands of workers in Southwestern Ontario, already has filed several grievances and is gearing up to take employers to court.
“We’re seeing zero-tolerance policies, but it’s not just zero-tolerance for impairment, it’s zero-tolerance for use,” said Niki Lundquist, a lawyer for Unifor, a union representing 315,00 workers.
“It’s as though an employer suddenly thinks it has the right to police off-duty conduct.”
A leading labour lawyer says the rules governing what employees can do during work hours are straight forward, but the issue gets trickier when it comes to mandating what workers do in their own time.
“It’s going to be really difficult to regulate what you do off duty.” said Mario Torres, an Ottawa-based labour-employment lawyer.
Rather than craft new policies to deal with cannabis, most employers are relying on established legal principals already in place that can apply to cannabis. Just how strict the marijuana-use rules are will depend on nature of the work, Torres said, noting riskier jobs will come with tightened rules.
“The culture of the workplace should determine whether you’ll have an issue as to the time period before your employee arrives to work before consuming cannabis,” he said.
Southwestern Ontario is home to employers like the Bruce Nuclear Generating Station in Kincardine and energy companies in Sarnia’s chemical valley which are likely to clamp down on employee pot use outside of work hours.
Though most companies are keeping their pot policies under wraps, police forces, airlines and the army have revealed their new rules.
Calgary police have banned officers from using cannabis entirely, while Toronto police say cops can’t use the drug within 28 days of duty, a decision the Toronto Police Association called “ill-contrived.”
Air Canada, meanwhile, is banning all employees in flight operations and aircraft maintenance from using marijuana at all times.
Some employers are adding clauses that give them the right to administer mandatory drug and alcohol testing, Lundquist said.
“Absent some link to damage to the employer’s operation or reputation, they don’t have that right,” she said, adding Unifor is preparing to take employers to court.
“Employers have fought really hard to subject workers to alcohol and drug testing, and workers have fought back because of the intrusion on . . . privacy rights.”
Unifor isn’t against drug testing, but says the presence of cannabis doesn’t necessarily imply a person is impaired,
“It’s why there’s been such a fight against random testing. The whole rational is to keep people out of the workplace in an impaired state, but there’s nothing in a random drug testing that confirms impairment,” she said.
Torres highlighted another thorny issue when it comes to workplace substance-use policies: medicinal marijuana.
Workers discriminated against for their use of medicinal marijuana will launch human-rights challenges, he said.
There were 296,000 prescription pot users registered with Health Canada as of May, up from 174,000 less than one year earlier, according to government statistics.
Another challenge that will arise is dealing with employees with cannabis dependencies, which is a protected right under the human rights code, he said.
“The employer has the obligation, the duty to accommodate to the point of undue hardship. And it’s the same thing with alcohol,” he said.