You obviously can’t get high at work, but does your boss have the power to control when you can and can’t smoke weed?
With Canada’s legalization of cannabis less than two weeks away, some employers are looking at setting restrictions around cannabis consumption.
Representatives of Irving shipyard’s union will sit down with the company in a few days to review the current drug and alcohol policy.
“It’s in its infancy and we’re all looking at a crystal ball,” said David Baker Mosher, president of Unifor Marine Workers Federation Local 1.
“We have a machinery based workplace,” said the union president. “Our object is to make it fair. Each member has their own rights.”
The Canadian military has restricted all service members. All are not allowed to be under the influence of marijuana at least eight hours before going on duty. There are stricter restrictions, including bans, between different units.
Halifax Regional Police are in the process of finalizing policies, which will apply to all staff.
But it’s not as simple as slapping time restrictions on employees outside of work hours, said Rick Dunlop, a labour and employment lawyer at Stewart McKelvey.
“The implied classic bargain between an employer and an employee is: ‘I (employer) am going to pay you to come to work and you’re going to be fit and able to perform the duties.’ And I think sometimes people don’t make the distinction between intoxication and impairment,” said the Halifax lawyer in a phone interview Wednesday.
“But cannabis has more of a subtle impact and a longer-lasting impact, so it’s not like: ‘Gee, last night I drank a glass of wine, and eight hours later I woke up and went to work and I’m fine.’,” he said.
Employers are allowed to take steps to ensure what employees do outside of work hours does not affect their performance.
“Particularly those in safety-sensitive workplaces, will be likely far more aggressive because they will, quite frankly, prefer to have litigation associated with testing than have litigation associated with a workplace fatality or injury,” Dunlop said of workplaces, such as the shipyard or construction companies.
Employers are able to test employees if a person is showing outward signs of impairment, there’s been a workplace incident or the employee is returning to work after substance abuse.
Random testing, while it was not recommended by the Supreme Court of Canada in a 2013 case out of New Brunswick, is permitted.
“Most policies will have some type of clause indicating the employees, if they’re picked for random testing, have no choice,” said Dunlop. “And a lot of employers, because occupational health and safety is so important, and because random testing has a deterrent effect, they consider it is appropriate to randomly test.”
The most common drug testing for cannabis is an oral swab, that is sent to a lab to be processed, but those tests don’t generate instant results or a time frame.
Shannon Kerr, Labour Department spokeswoman, said they have been working with employers and employees to raise awareness on how legalization overlaps the requirements in the Nova Scotia Occupational Health and Safety Act.
“It is important to note that the legalization of cannabis will not result in any changes to the act, as the act already addresses impairment in the workplace and requires employers to ensure the safety of those at or near the workplace,” said Kerr in an emailed statement.
Although businesses have had rules and regulations in place on cannabis prior to legalization being introduced, Dunlop anticipates the answer isn’t in the near future.
“There’s going to be a lot of litigation about this,” said the labour and employment lawyer. “Employees, employers and unions are going to litigate this issue. So, by no means is this the last word on it.”
