Get the Update on Where We’re at with Legalization in Canada.

What a busy couple of weeks! After our previous blog post about why you need to strengthen your drug and alcohol policy, so much has happened in the realm of cannabis law.

  • Bill C-45 received royal assent and cannabis is set to be legal on October 17th this year.
  • The Supreme Court of Canada (SCC) just rejected Unifor’s appeal of the Suncor case. Unifor, a union representing over 3,000 of Suncor’s employees, filed a complaint over the introduction of random drug testing. The case has been ongoing for six years.
  • Energy Safety Canada (ESC) and the Construction Owners Association of Alberta (COAA) came up with updated guidelines for creating an effective drug and alcohol policy.

There’s a lot to catch up on!

It’s Official: Bill C-45 Is Passed

Let’s start with Bill C-45. What a historic moment! On October 17 of this year, cannabis will be legal for recreational sale, possession and consumption for the first time in over a hundred years. Canada is the first G-7 country to make this monumental shift in public policy.

Canadians certainly feel all different ways about it, but one thing is for sure: this new law is going to stir the pot.

Legal medical and recreational cannabis use raises some questions for workplace health and safety.  Topics worth exploring include:

  • The legality of random drug testing and
  • the balance between safety and privacy.

To expand on these points, let’s look at some current events to get an idea of their trajectory.

The Case Law Unfolds: The Suncor v. Unifor Proceedings

Issues of legality surrounding the relationship between drug testing and human rights are still murky. Even large companies, like Suncor, have not been immune to legal complications. They’ve been in legal gridlock for a while now. And it looks like the battle continues.

The Suncor v. Unifor case sets a precedent for Albertan industries because of the company’s high-profile status in the oil-and-gas sector.  Canadian case law is created and solidified by sequential court decisions – each new decision adding to the established law. Prominent cases can have a drastic impact on future drug testing rulings. Employers and employees alike have been watching in anticipation to see how the proceedings play out.

If you haven’t been following the Suncor case closely, here’s a little rundown to catch up:

  • Suncor introduced a random drug testing procedure into their drug and alcohol policy back in 2012.
  • Unifor took exception and filed a grievance on behalf of unionized workers to kick off the legal proceedings. The complaint concerned an alleged invasion of the subjected workers’ privacy.
  • This led to an initial injunction which prevented Suncor from implementing the random testing policy.
  • The following arbitration hearing found that Suncor’s random testing policy was unreasonable.
  • Suncor promptly appealed the decision with the Court of Queen’s Bench. The arbitration decision was overturned under grounds that the initial arbitration panel improperly limited their discussion to the involvement of union members only. This discussion did not account for the health and safety of all Suncor employees, even the ones outside of Unifor’s representation.

Just recently, Unifor took the case to the SCC for review. The SCC dismissed the case. In the meantime, Suncor appealed the injunction set by the initial arbitration panel. The Alberta Court of Appeal upheld the panel’s decision. Now the case is forced to go through another arbitration hearing before any further decisions will be made.

The outcome of this case is yet to be determined. But as legal costs continue to dredge the pockets of both parties, examination of the legal playing field can help us understand where the landmines tend to lie.

A pertinent case, frequently referenced in the Suncor case, is Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper. This previous case involved a challenge by the union against the employer for implementing a random drug testing policy. The SCC ruled that employers can only implement random drug testing for safety sensitive positions when there is a clearly established drug or alcohol problem. The precedent set by this case puts an onus on the employer to define which positions are safety sensitive and to provide a clear indication that there is a drug or alcohol problem at the workplace.

It can be difficult to strike a balance between protecting your employees’ privacy and focusing on workplace safety. However, a well-crafted drug and alcohol policy can help clarify where to draw the line. The Suncor case provides an excellent case study to illuminate the importance of managing employee/employer expectations. Pre-emptive efforts to make sure everyone understands the rules can save unnecessary headaches later.

We introduce safety sensitive positions in drug and alcohol policies in our first blog post. To learn more, like how to define a safety sensitive position, check out the resources provided by industry associations and professionals.

Industry Provides Leadership: New Guidelines Available

ESC and the COAA have new guidelines for drug and alcohol policies. They just released the latest iteration of The Canadian Model for Providing a Safe Workplace – V. 6.0.

The Canadian Model was designed to unify a standard policy for dealing with drug and alcohol impairment in the workplace. The COAA started the project in 1999 and made five different versions of the Canadian model. They then teamed up with Energy Safety Canada to unify a single reference for the oil and gas and construction industries in Alberta. Multiple stakeholders from different trades were consulted to get current information on this topic and detail a standard that everyone can follow.

The Canadian Model for Providing a Safe Workplace is explicitly built for the rigorous standards and needs of the oil and gas and construction industries. Therefore, much of the same methodology can be applied to other Albertan industries. It includes thorough guidance for determining which positions qualify as safety sensitive. This is important when it comes to drug testing because it’s not legally defensible to enact random or pre-employment testing for non-safety sensitive positions. In many cases, reasonable cause and post incident testing make more sense because they tend to hold up to legal scrutiny.

A Pattern Emerges: Drug and Alcohol Policies and the Law

Canadian law is a dynamic affair. New legislation like bill C-45 represents another step in setting the legal framework. As with the introduction of any new law, the fine details will take time to iron out. As the case law unfolds, we want to make sure that you have the tools to keep your workplace safe with solid procedures and policies to fall back on.

What you’ll find is that drug and alcohol policy discrepancies often come down to a few common points of dispute: Is the position safety sensitive? Does the policy support a justifiable attempt at improving safety outcomes? And to what extent does an employer have a duty to accommodate employee drug use? It’s very important for employers to define these parameters so they have a legal leg to stand on.

It will be exciting to see what happens next with cannabis in Canada. Provinces and industries will be challenged with accommodating and integrating this monumental shift in public policy. Build your foundations now to be prepared for what’s to come.

If you need help with those foundations, Safety Coordination Services has resources you can access. We are a loss control company that cares about keeping people safe no matter the political or legal climate. With cannabis hitting the market in a big way this fall, we are ready for some significant changes.

Now is a great time to get your drug and alcohol policy in line as well. You can check out our other blog post to learn about what makes a great drug and alcohol policy. Also, we offer online courses in Alcohol and Drug Awareness Training and Substance Abuse Awareness for Employees. Drug and alcohol testing services, including a mobile testing unit for worksite testing, can be accessed through our Occupational Health Division. We also offer intensive safety management system audits and implementation services.

Whether these cannabis changes mean you could use specific training or a full-blown safety evaluation, we’re here to help. Call or email today. And leave a comment below to chime in on the ongoing cannabis legalization challenges to employers today.