Drug Use in the Workplace

With the pending legalization of marijuana in 2018, many employers are concerned about how they can best manage the potential risks created by employees who use marijuana as well as other drugs. A recent decision by the Supreme Court of Canada gives employers greater guidance in workplace policies to effectively manage the risks associated with employee drug use.

In Stewart v Elk Valley Coal Corp, the SCC upheld an employer’s drug policy where an employee was terminated after a work-place accident.  Mr. Stewart was a heavy-equipment operator who used cocaine on his days off. He was involved in a workplace incident where no one was hurt; a subsequent drug test came back positive. He had not disclosed his drug use and he was terminated for failing to follow the policy of disclosure.

The employer’s policy, which had been explained to Mr. Stewart, required disclosure by the employee. The employee would not be terminated and the employer would offer treatment. The policy stated that if the employee failed to disclose and was later involved in a drug-related incident, the employee would be terminated. The intent of the policy was to increase safety and deter employees from failing to disclose. The SCC held that the policy did not violate human rights legislation and the employer had met its duty of accommodating to the point of undue hardship.

It is important to keep in mind that drug addiction has been accepted as a “disability” in a number of cases involving human rights complaints. The fact that a person uses illegal drugs does not, on its own, give an employer the right to terminate an employee. What defeated the claim of the employee in this case, and justified the employer’s position, was the existence of a clear policy that encouraged disclosure and warned of termination for safety reasons. Without that policy the employee’s complaint would likely have succeeded.

Owners and managers of safety-sensitive business (e.g. construction and manufacturing), should be aware that they can implement effective policies to manage the risks and liabilities created by employees who use drugs and can terminate the employee for failure to follow the policy. The policy needs to clearly worded, explained to the employees, and followed diligently to be effective. The policy needs to be in place prior to termination or the employee may have a claim against the employer under applicable human rights legislation.

If you operate a construction, manufacturing, or other safety sensitive business or have questions about workplace policies, contact our office.