On October 17, 2018, the Canadian Government legalized cannabis for recreational use across Canada. Many Canadians celebrated what’s come to be called “National Cannabis Day.” HR professionals and employers whose organizations employ workers in safety-sensitive roles were likely less jubilant.
It’s not difficult to understand why. HR professionals, managers, and supervisors face the daunting task of taking “every precaution reasonable in the circumstances” to protect the health and safety of their respective workplaces. Thankfully, the law does not entirely leave workplace stakeholders “high and dry” (pardon the pun). As with alcohol and other drugs, employers can generally expect staff to be free from cannabis impairment while at work. Occupational health and safety law also recognizes additional restrictions may need to be in place regarding cannabis use, and fitness for duty for employees performing safety sensitive roles.
Defining “Safety-Sensitive” Roles
In 2017, the Canadian Human Rights Commission (“CHRC”) defined a safety-sensitive position as one which:
…if not performed in a safe manner, can cause direct and significant damage to property, and/or injury to the employee, others around them, the public and/or the immediate environment.
In many ways, the designation of a particular job as “safety-sensitive” can significantly alter an employer’s legal obligations when they are dealing with impairment in the workplace, or when they receive a cannabis-related accommodation request.
Designating a Role as “Safety-Sensitive”
To determine if a role is safety sensitive, employers must evaluate whether or not a failure to perform the role would cause harm or the potential for harm to the worker, others, or property.
Employers might receive push-back from employees if they “overreach” with their categorization of “safety sensitive” jobs. An employer may be overreaching if it designates a clerical desk job as a “safety sensitive” role because an employee might “potentially” harm themselves or another while using a stapler or scissors.
It’s arguably clearer that a forklift operator, driver, electrician, swing-stage operator, pilot, or nurse needs to be free from impairment while at work, because performing such work while impaired has the potential to cause great harm to themselves or others.
For example, Canadian airlines determined that pilots and cabin crew members are safety-sensitive roles because if these roles do not perform their duties safely, they have potential to cause great harm.
The determination of safety sensitive roles has to be made on a case-by-case basis.
Off-Duty Conduct for Safety-Sensitive Roles
A question we often receive is whether an employer can forbid an employee working in a safety-sensitive role from consuming cannabis recreationally.
Generally speaking, employers that operate safety-sensitive workplaces can regulate employees’ off-duty cannabis consumption, although this approach has not been widely adopted. We tend to see this approach applied in the context of emergency responders, or heavily regulated transportation-industry employees (for example, pilots, truck drivers, paramedics, police officers).
For instance, some police services have established policies which state that employees who consume cannabis within the immediately preceding twenty-eight (28) day period cannot attend work. Certain airlines have established even more restrictive policies that prohibit their employees from consuming cannabis altogether. In designating the roles of pilot and cabin crew as safety sensitive, airlines have essentially taken the position that prohibiting employees in these roles from using cannabis at any time, both on-duty and off-duty, is a bona fide occupational requirement. Without having first designated these roles as safety-sensitive, the airline would arguably not have had grounds to implement such a prohibitive policy.
Other employers with safety-sensitive employees (including police service divisions) have resorted to standard “fit for duty” policies which assess impairment on a case-by-case basis as opposed to outright banning recreational cannabis use.
Because cannabis affects each person differently, there is no clear answer as to how much time must pass after consumption before an employee may once again be considered “fit for duty.” The problem of “residual impairment” is a very significant concern for employers seeking to comply with their obligations under the Act.
At present, the “fit for duty” approach appears to be the most legally defensible approach. This means that employees can do whatever they want during their “downtime”, but they need to be “fit for duty” when they come to work. The requirement to be “fit for duty” is mandatory, and particularly so if they work in safety-sensitive roles.
Determining “Fitness for Duty” With Regards to Cannabis Use
In a general sense, fitness for duty is an employee’s ability to do a job. Lift truck operators who arrive at work rested, sober, and well are considered fit for duty; ready for a day of lift truck operations. Operators who arrive at work impaired are not fit for duty.
How might employers determine whether an employee is impaired and unfit for duty?
At present, the preferred approach is for employers to provide training for managers, supervisors and employees on the impact of impairment, and how to recognize and respond to possible signs of impairment.
Additionally, to limit exposure in these circumstances, employers may wish to communicate to employees through their Workplace Substance Management Policy their expectation that those performing safety-sensitive roles must be “Fit for Duty” at all times.
Medical Accommodation vs Safety-Sensitive Roles
Courts and adjudicators have issued consistent rulings with respect to an employer’s risk tolerance relating to medial cannabis and safety-sensitive roles. Cannabis is a known psychoactive substance with significant impairing effects that include a reduction in reaction time.
Several adjudicative bodies, including the Human Rights Tribunal of Ontario (“HRTO”), have concluded that the risk of residual impairment when performing safety-sensitive work, however minimal, can constitute undue hardship for the purposes of medical accommodation under human rights legislation.
With further reference to our airline example, an employer’s obligation is to accommodate disabilities up to the point of undue hardship. This means that the airline arguably cannot and does not have to allow a pilot who uses cannabis to fly a plane. That risk would arguably constitute undue hardship. However, the airline may be obligated to find an alternative assignment for the employee – that doesn’t jeopardize personal and passenger safety – such as training other pilots in a classroom. Of course, the employer’s position would need to be revisited, should the pilot find an alternative medicine, or be able to conclude their cannabis treatment. In those circumstances, the airline would need to satisfy itself that the pilot would no longer present a risk, and they would be able to safely resume their role as an airline pilot.
Conclusions and Key Takeaways
- Employers are well within their rights to designate safety-sensitive roles, and equally within their rights to require all employees in any role to report to work sober and “fit for duty” at all times.
- The law is currently unclear as to whether an employer can forbid employees from consuming recreational cannabis while off duty. At present, assessing whether workers are “fit for duty” on a case-by-case basis appears to be the prevailing approach.
- Employers don’t have to tolerate the risks associated with impairment while performing a safety-sensitive role. To do so constitutes undue hardship for the employer. They must attempt to make reasonable accommodations to the point of undue hardship.
- Employers should clearly communicate expectations and fit for duty standards using workplace policies and should provide training on policies and expectations
Due to the fact that this is a very rapidly evolving area of the law, there may be significant changes to an employer’s cannabis-related obligations as new issues arise and are addressed by Courts, adjudicators, law enforcement agencies, and federal and provincial legislatures.
Written by Tushar Anandasagar
Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C. He works in all areas of Labour and Employment law, with a particular focus on Workplace Health and Safety compliance and related issues. For further information or discussion, please contact Tushar by email at Tushar@leclairandassociates.ca.
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