The impact on sub-contractors and trades
Amy Groothuis, Miller Thomson LLP
In safety-sensitive workplaces, employers often implement “zero tolerance” drug and alcohol policies. Having a strict standard for impairment in the workplace is a straightforward way to clearly establish employee expectations. There is no grey line: a worker is either compliant with the policy or not. With zero tolerance policies, non-compliance generally results in immediate discipline, up to and including dismissal from employment.
However, with the expected legalization of recreational cannabis this summer, employers may be left wondering what impact recreational cannabis may have on zero tolerance drug and alcohol policies, especially as they relate to pre-employment testing, prior to hire or pre-access testing required by a general contractor or owner of its trades.
Pre-employment or pre-access screening for drugs and alcohol, sometimes in conjunction with an overall medical examination to demonstrate a potential employee’s fitness for work, generally arises in one of four scenarios:
- As a new hire for a non-unionized company, often referred to as pre-employment screening, where a job offer is conditional on a “clean” test;
- In a non-unionized work setting, as a pre-condition imposed by the general contractor for a sub-contractor’s employees, prior to gaining access to a general contractor or owner’s work site for a particular job, often referred to a pre-access screening;
- In a unionized work environment, where the collective agreement does not permit such testing but the employer unilaterally imposes pre-employment or pre-access testing through the imposition of a drug and alcohol policy; or,
- In a unionized work environment, where the employer and the union negotiate such pre-employment or pre-access testing into the collective agreement.
The fourth scenario implies that both parties – the employer and the union – have agreed to pre-employment or pre-access testing and that process is included in the collective. What should employers generally be cognizant of when seeking to impose pre-employment or pre-access screening? How are sub-contractors impacted by policies imposed on their employees by general contractors? Essentially, the contest in every alcohol and drug testing case is between the employer’s right and obligation to take reasonably necessary steps to maintain a safe workplace and the individual’s right to privacy.
In one sense, this is the easiest situation to address. When a company is looking to hire a new employee, a job offer may be conditional on certain factors such as proof of a particular certification or trade, that the potential employee holds a specific licence to operate heavy machinery or a clean drug test. At that stage, the potential hire has the choice whether to participate in the drug test, but knows that refusal to do so will result in the job offer being revoked. There is no employment relationship between the parties and arguably no damages could result if the job offer is revoked, either for a failure to submit to testing or because the test showed some level of THC, resulting in a failed test.
However, from the perspective of human rights law, pre-employment screening has the potential to result in a complaint to the Saskatchewan Human Rights Commission (SHRC). If an individual tests positive for a drug and the employment offer is subsequently revoked, this could result in a complaint of either real or perceived disability. Discrimination on the ground of disability in employment is contrary to the SHRC and “disability” has been held to include perceived disability. Even at the hiring stage the duty to accommodate can apply.
PRE-ACCESS SCREENING – NON-UNIONIZED
This is a common practice in construction, especially in safety-sensitive worksites or projects. In this situation, the general contractor or owner requires the employees of its sub-contractor or trades to participate in mandatory drug and alcohol testing prior to gaining access to the job site. Any employee who refuses or who takes the test and fails is refused access to the site and therefore cannot work on that particular project or contract.
Yet a “positive” test for THC does not indicate current impairment, nor does it prove that the employee is more likely to be impaired at the workplace in the future. From an employment law perspective, once recreational cannabis is legal, a test indicating some level of past THC consumption is of limited use to an owner or general contractor. In essence, knowing that the employee of a sub-contractor consumed cannabis is equivalent to knowing that individual drank a few beers while watching the baseball game last Saturday.
But from a legal perspective, what is the recourse? There may be an imbalance between the sub-contractor and the general contractor. The sub-contractor may be financially dependent on that particular contract and have few other options. But when an employee fails to test clean and is not permitted on the work site – and subsequently has no available work – it is the sub-contractor who will be liable to pay reasonable notice or severance to its employee, not the general contractor who required the testing.
The potential for a human rights complaint is equally at issue in this scenario as both the sub-contractor employer and the general contractor may face a human rights complaint for perceived disability if an employee who tests positive for THC is not permitted on the work site. However, in some instances, courts and tribunals have held that recreational users of cannabis are not discriminated against by pre-access policies that require a clean test in order to gain access to a company’s worksite as a sub-contractor. There is no prohibited ground of discrimination, because limiting access to private property to those individuals who test clean is not in and of itself discriminatory and thus protected by the SRHC. The SRHC is only engaged when a disability or perceived disability exists. So long as the refusal to permit access arises from the breach of the policy to test clean and not from a real or perceived disability, any human rights complaint is unlikely to be successful.
PRE-EMPLOYMENT OR PRE-ACCESS SCREENING – UNIONIZED
As noted above, where an employer and union bargain for specific rules or processes around drug testing, they are generally deemed acceptable. However, where an employer unilaterally seeks to impose new rules regarding pre-employment or pre-access screening, without bargaining for those with the union, the employer is likely to face an uphill battle in successfully implementing the policy.
Unilateral imposition of a policy requiring pre-access and pre-employment screening for drugs and alcohol in a unionized setting has repeatedly been struck down via grievance arbitrations, with multiple arbitrators overturning such policies as an unreasonable invasion of the individual employees’ privacy. Pre-access and pre-employment testing has generally been treated the same as random drug and alcohol testing. Even in safety-sensitive or dangerous workplaces, an employer cannot generally impose speculative alcohol or drug testing, which infringes on employee privacy in the interests of deterrence.
WHAT ARE WE SUPPOSED TO DO NOW?
From the perspective of a general contractor or owner, the goal of maintaining a safe worksite is paramount. But how does testing for THC further that goal? Because cannabis metabolites are fat soluble, they build up in body fat with regular use and as a result, regular or long-term users will continue to excrete cannabis metabolites in their urine for up to 30 or more days after the last ingestion of cannabis.
It is arguable that like random testing, pre-employment testing suffers from two primary flaws. First, because such testing only indicates past use, it provides no evidence that a person is or will be incapable of safely performing the essential duties of the job. Second, the sanctions for a positive (failed) test are generally more stringent than needed to ensure a safe workplace, given other options available to employers from a safety perspective.
The courts have limited the type of drug and alcohol testing that employers may impose, especially with respect to unionized workforces. Although non-union sites have greater latitude, employers still face the prospect of human rights complaints and one wonders when the tides will shift when it comes to pre-access testing for recreational (i.e., legal) cannabis. Polls show that between 20 and 40 per cent of Canadians expect to occasionally use recreational cannabis. If it is not a strictly legal issue, it may very well become a human resources issue if zero tolerance policies for THC levels consistently weed out qualified and ready-to-work sub-contractors. Sub-contractors and trades required to agree to stringent pre-access testing should inform themselves of developing industry standards respecting concentrations of THC that indicate impairment and seek modifications to general contractors’ drug and alcohol policies so that as much as possible, testing cut-off limits for cannabis are high enough so as not to “catch” occasional recreational users of cannabis with the resulting refusal of access.