DECEMBER/JANUARY 2019 15
JOINT
DECISION
A
After the
legalization
of recreational
cannabis,
employers need
to understand the
legalities of testing,
while new technologies
promise better ways to
measure impairment
A
worker at Tolko Industries in Williams Lake,
B.C. was backing his log loader out of a loading
bay in May 2016 when he struck and seriously
damaged a chip loader. In post-incident drug test-
ing, the worker tested positive for cannabis. An assessment
by a substance abuse professional concluded the individual
did not have a substance abuse problem. The worker was fired.
An arbitrator in the case stated the positive test was not enough
to justify dismissal because cannabis testing can reveal past usage
but not current impairment. However, the employer argued the
worker was fired because his positive test for cannabis was in breach
of the company's drug and alcohol policy and the company was not
required to prove the worker had been impaired. The arbitrator agreed
the company's policy prohibited an employee from testing positive and,
while reducing the penalty, accepted that some discipline was appropriate.
The legalization of recreational cannabis doesn't change the way employ-
ers handle drug and alcohol testing. However, the drug raises a particular
difficulty: The lack of correlation between the amount of cannabis in a person's
system and impairment. Employers should be aware of some of the main issues
around their right to test, which recent legal cases have highlighted. They also
need to understand the importance — as the arbitration hearing above showed
— of updating their drug and alcohol policies to deal with the potentially greater
presence of cannabis in the workplace.
By Linda Johnson
