In the previous article we discussed when it is appropriate to test for drugs. Long story short, it is hard to establish a right to test, and when it comes it marijuana, it is presently impossible to establish that the employee was impaired when at work. Given that it is difficult if not impossible to prove impairment, this week we look at whether an employer must establish that an employee was actually impaired, in order to discipline for marijuana use at work.
Although prescribed marijuana use has seen little litigation, one issue surrounding marijuana use at work that has been litigated recently revolves around the significance of observable impairment, and the type of evidence required to successfully uphold the termination of an employee who attends work after consuming marijuana.
In Insurance Corporation of British Columbia v Canadian Office and Professional Employees Union, Local 378, unreported decision dated April 22, 2015 (Brown), the employee was terminated after he admitted to driving off the employer’s property during his lunch break, smoking marijuana, and returning to work. The employee also admitted to having done so on previous occasions. Despite this admission the employee maintained that he was not intoxicated when he returned to work, and that he only smoked marijuana as a stress reliever, not to get “baked”.
The arbitrator rejected this defence, finding that it was unnecessary to conclude that the employee was impaired to uphold the termination. The employee’s intent was to alter his state of mind and return to work. That fact, along with the fact he had breached the employer’s code of ethics, was sufficient to justify discipline. Despite having worked for the employer for 24 years and having no discipline on record, the arbitrator upheld the termination, noting that the employee was not entitled to assess his own capabilities to drive and work under the influence of marijuana.
A similar approach was employed recently in Vancouver Shipyards Co Ltd v CMAW Marine and Shipbuilders Local Union 506, unreported decision dated October 28, 2015 (Foley). In that case, an off-duty police officer out for a bike ride, observed marijuana smoke emanating from a moving vehicle. After following the vehicle for a short period of time, the officer found it parked in the employer’s parking lot and alerted the employer. Two employees admitted to having been in the vehicle on their lunch break, but claimed that they had only smoked a cigarette. After determining that the officer was credible, the employer terminated both employees pursuant to its substance use policy. The only evidence of the two employees having smoked marijuana was the testimony of the police officer that he had smelled marijuana emanating from the vehicle.
At arbitration, the arbitrator rejected the evidence of the employees, finding that the officer, who happened to be a member of the drug squad, was credible and would have known the smell of marijuana. The fact that marijuana smoke was emanating from the vehicle was sufficient for the arbitrator to conclude that the two employees were smoking marijuana in the vehicle when they encountered the police officer.
Critically, the arbitrator also found that it did not matter that the employer was unable to establish that the employees were intoxicated when they returned to work. It was sufficient that they had smoked marijuana during their break.
These decisions highlights the fact that a positive drug test is not a pre-requisite for termination. Rather, a positive drug test merely operates as circumstantial evidence to support more compelling evidence. The “I only ingested marijuana to take the edge off” defence may become more prevalent after legalization. However, decisions such as these suggest that employers should not be required to tolerate the self-assessment of impairment, as the consequences of a failure to properly self-assess, could be tragic. Finally, while termination was upheld in the context of these safety sensitive workplaces, in the context of a workplace that isn’t safety sensitive, it may be that a lesser form of discipline would be more appropriate.
Questions relating to the content of this article may be directed to Brad Cocke.