Understanding the rights of employers and testing for impairment

The recreational use of cannabis in Canada is now legal. As Canadian organizations navigate the complexities of this changing health and safety landscape, one thing remains clear, accurate testing for impairment has yet to be developed. This simple fact has caused many employers to wonder, how can an organization defend a zero-tolerance approach to recreational cannabis when accurate testing is impossible?

The answer lies in the recognition of cannabis impairment, rather than the simple detection of THC in an individual through testing. THC can remain detectable within the human body beyond the point of known intoxication. As a result, THC detection technologies will not be able to prove impairment without the support of a sobriety test. Therefore, simply being able to detect cannabis will not be enough of a defense for employers implementing a zero-tolerance policy to use of cannabis products among employees.

The only way in which a zero-tolerance approach could be properly defended will be for employers to demonstrate how the detection of THC could result in impairments that would directly affect the critical/essential task(s) of their safety-sensitive and/or high-risk occupations. This is especially true where the environment of work itself attempts to label the majority of occupations as safety-sensitive. These approaches will also be difficult to uphold in the future with the advent of new noninvasive technologies which can more accurately and reliably identify the potential time of consumption and its potential level of impairment.

To date the only way to legally take action against an employee in a case of suspected use is with the institution of a Bona Fide Occupational Requirement (BFOR). A BFOR is a legal term for the essential/critical tasks required to perform a job. If an employer can attempt to establish that the short-term and/or long-term impairment(s) of cannabis overlap with that of the critical/essential task(s) of the occupation(s) which cannot be modified/adapted, then an employer is able to legally discriminate against an employee.

BFORs are not preferences; they are duties or elements that are essential to the job. Many employers currently argue that all safety-sensitive workplaces ought to have a BFOR and should therefore be awarded a zero-tolerance policy. However, for a BFOR to be properly established an employer must make attempts to meet their “duty to accommodate” to ensure the rights of their employees are not being discriminated against. According to the Human Rights Act of Canada a BFOR can be upheld if:

• It is does not discriminate against vulnerable populations

• Any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment by an employer has been based upon an established BFOR

• Any legal discrimination acted upon by an employer must also demonstrate reasonable due diligence the duty to accommodate employees

Additionally, the Supreme Court of Canada established a three step test to whether an employer can justify legal discrimination through a BFOR requirement by having to meet following requirements:

• The employer is enforcing a BFOR that is directly connected to minimum critical/essential safe performance of the occupation

• The employer is enforcing the obligation to meet the BFOR in an honest way and with good faith and can clearly demonstrate how the lack of fulfillment would be comprising to the employee and/or their co-workers

• The BFOR can be proven to be for a reasonable purpose and be necessary to accomplish its work and/or workplace related purpose

With the current limitations regarding THC detection and its relationship with impairment, the only way for a given position/policy on cannabis consumption to be consistently upheld is through appropriate due diligence and accommodation. Consequently, the development of a Pre-Employment Standard (PES) is currently one of the most effective ways to establish the minimum critical/essential demand of the occupation and thereafter to uphold a policy of zero-tolerance.

PES are task/simulation-based activities which represent the essential/critical demands of an occupation. Once established these standards can be directly compared to the established effects of cannabis. Together with Pre-Employment Medicals and Drug & Alcohol Screening, the PES approach provides the strongest means of support for a BFOR against and short-term and/or long-term impairment of cannabis in the workplace. At present, the gap in the scientific literature regarding the short term and/or long-term effects of cannabis use on physical and mental work performance has been allowing employers to err on the side caution. However, as new non-invasive technologies can more accurately and reliably identify the potential time of consumption it will be critical to understand the subsequent impairment risks of cannabis and how it directly relates to the critical/essential tasks of safety sensitive occupations because simply being able to detect use will not be enough of a defense when aiming to implementing a zero-tolerance policy.

Still have questions about cannabis and workplace safety? 

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