Drug Testing at Work: Cannabis Use and Legal Rights

Posted Jun 19, 2024 by

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An employer’s obligation to maintain a safe workplace can often conflict with individual employee rights. This obligation extends beyond the confines of the workplace itself, reaching into employees’ private lives, particularly concerning activities like cannabis consumption that could impact their performance on the job. A recent decision from the Court of King’s Bench demonstrates how the employers’ obligations can result in the termination of employment even when an employee demonstrates an addiction or reliance on cannabis.

Employer’s Duty and Drug Testing at Work

Employers have an obligation to maintain a safe workplace under Alberta’s Occupational Health and Safety Act, RSA 2000, O-2. Employers are required to “ensure, as far as it is reasonably practicable for the employer to do so, (a) the health and safety of (i) workers engaged in the work of that employer, and (ii) those workers not engaged in the work of that employer but present at the work site at which that work is being carried out.”

Based on this statutory duty, employers have a legitimate interest in preventing employees from using cannabis away from work if the substance remains in the employees’ system when at work. Many employers whose business involves physical risk to employees and risk of property damage have drug testing at work and alcohol policies to protect the safety of persons and property. The Courts have regularly found that appropriately worded drug and alcohol policies that require testing following a workplace accident are reasonable. Once an employee tests positive for drugs after a workplace incident, legitimate safety concerns supersede the privacy interests that might preclude random drug testing at work.  Employees have legal and moral duties to their employer and their colleagues to maintain a safe workplace. 

Case Study: Drug Testing at Work Following an Incident

In this recent decision, an employee involved in a workplace motor vehicle collision was thereafter subjected to a drug test. The drug test confirmed the presence of cannabis in the employee’s system, following which the employer informed the employee he would have to participate in the company’s substance abuse program moving forward. Substance abuse program involved random testing for a period of 24 months.  The employee refused to participate in the program and His employment was terminated for cause.

The Court found the employer had just cause to terminate the employee’s employment. The drug and alcohol policy was reasonable, unambiguous, well published, and consistently enforced. The employer was involved in the construction industry where safety is of the utmost importance and drug testing at work following workplace incidents is reasonable. Moreover, random drug testing as part of a return to work protocol following a positive drug test is also an accepted practice in inherently dangerous industries.  The Court also noted that (1) the policy was not ambiguous or otherwise unclear.; (2) the drug and alcohol policy was available to all employees and regular training on the policy was conducted by the employer; and (3) the drug and alcohol policy was consistently enforced. The Court Ultimately determined that an employee who refuses to comply with the policy’s random testing requirements following a positive test after a workplace incident could have their employment terminated for cause.

Legal Considerations in Drug Testing at Work

One noteworthy component about this decision is that the question of discrimination was not directly before the Court. In Alberta, the Alberta Human Rights Commission has exclusive jurisdiction to hear complaints regarding discrimination, meaning the Court could not determine whether the employer’s conduct was discriminatory. However, the court did comment that the employee’s refusal to participate in the random testing process prohibited the employer from fulfilling its duty to accommodate under human rights legislation. 

Contact Us for Legal Advice 

This case demonstrates the importance of consulting a lawyer before determining how you will respond to an employer’s investigation into your conduct. If you find yourself in a similar situation or have questions about a workplace drug testing at work policy, contact Cashion Legal for a consultation. It’s much easier to spend the time getting a legal opinion before signing than it is to file a complaint after the fact.

This article is intended to help educate the general public on the legal community on recent developments in employment law. Reviewing this article is not a sufficient substitute for legal advice. If you need legal advice, contact us today.

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