By Shelley Brian Brown B.C.L., LL.B., LL.M. Employment Lawyer, Steinberg, Title, Hope and Israel LLP
The legalization of recreational cannabis will create significant challenges for employers within the trucking industry. The experience of other jurisdictions where legalization has happened indicate that there will be an increase in consumption. Regardless of the size of the enterprise and irrespective of the existence, or lack thereof, of a human resources department to regulate its use and potential abuse in the workplace, employers will need to have policies in place and know how to apply them properly.
Safety-Sensitive or Not?
Arguably, the most significant issue in trucking is the difference between safety sensitive and non-safety sensitive jobs.
Safety sensitive jobs demand more oversight as the consequences of working while impaired can be catastrophic. Non-safety sensitive jobs are of less concern. However, productivity and efficiency, not to mention the potential negative impact on a company’s reputation, are still important considerations. What tools exist to deal with impairment at work in non-safety sensitive positions?
Establish Clear, Written Policies
At the outset, it is critical to have a written policy that prohibits impairment at work. The policy should state that those who are impaired will be put on progressive discipline, and that failure to adhere to this process will be subject to additional discipline up to and including termination for cause.
HR professionals must also apply progressive discipline consistently and equally at all times. Failure to do so could result in a court, tribunal, or arbitrator overturning the termination. In some instances, damages and/or notice may be awarded.
This is what occurred in the case of Stone v. S.D.S Kerr Beavers Dental.
Norman Stone, a 16-year employee in a non-safety sensitive position, was fired for cause after four women complained that Stone had consumed alcohol at work and acted boorishly with female co-workers. A company investigation found that Stone had violated its policy that prohibited harassment and consuming drugs or alcohol at work.
In 2008, an Ontario Superior Court found that although the policy had been breached, Stone did not sexually harass the complainants and, despite previous similar actions, Stone had never been disciplined or warned.
As the policy had not been adequately or consistently applied, the court set aside the termination for cause and ordered the company to pay notice.
Another decision rendered in 2017 by an adjudicator under the Canada Labour Code (Dominato and Windsor Disposal Services Ltd.) also set aside a termination for cause for breach of progressive discipline.
The company had issued numerous warnings but had skipped steps and backtracked. It had misapplied the policy provisions. Therefore, the termination for cause was set aside and the adjudicator awarded compensation plus other damages.
With the Cannabis Act coming into force on Oct. 17, the message for HR professionals is clear: establish a policy and make sure it is applied consistently and according to its terms or a dismissal may not be upheld.
UPDATE: February 12, 2019
Following the webinar on Developing an Effective Workplace Impairment Policy held by Trucking HR Canada, in partnership with Steinberg, Title, Hope & Israel LLP, we are now releasing a copy of the Drug & Alcohol policy template provided by Shelley Brian Brown. The policy covers topics such as legal guidelines, obligations for workers in safety-sensitive positions, disciplinary measures, cross-border drivers, and signoffs on the policy.
Disclaimer: This post is informational and does not constitute legal advice. A lawyer should always be consulted.