Drug Testing at Work: Cannabis Use and Employee Rights

Striking a balance between an employer’s duty to provide a safe workplace and an employee’s personal rights, particularly concerning drug testing at work and cannabis use, can be complex. 

This article will help you understand:

• Practical strategies for both employers and employees
• The legal rules for drug testing at work
• Employer obligations and employee rights
• Recent court decisions shaping the drug testing landscape

Employer’s Obligations

Ensuring a Safe Workplace 

Albertan employers have a fundamental legal duty to maintain a safe workplace under Alberta’s Occupational Health and Safety Act. They are required to protect the health and safety of:

• All workers directly employed
• Other individuals present at the worksite

This means employers have legal authority to implement policies, including drug testing at work, to manage risks associated with impairment.

Impairment in High-Risk Industries

Drug testing is primarily used in safety-sensitive industries, where there is an increased risk of physical harm to employees, the public, or property. Industries that fall in this category include:

• Construction
• Transportation
• Oil and Gas
• Manufacturing

Employers in these industries often have strict drug and alcohol policies that include drug testing at work. This is typically because substances, such as cannabis, remain in the employees’ system over a longer period of time and could cause impairment while on the job.

Duty to Inquire

If an employer is aware, or should reasonably be aware, that addiction is affecting an employee’s work, they may have a duty to inquire. This means engaging in a discussion with the employee to explore potential accommodation needs. 

Duty to Accommodate

Employers have a legal duty to accommodate employees with disabilities to the point of undue hardship. Addiction can be considered a disability, which means an employer may have a duty to provide access to substance abuse programs to assist the employee in addressing their addiction and returning to work.

When is Drug Testing Justified at Work?

The Courts generally find that certain types of drug testing at work are reasonable, provided the drug and alcohol policies are clear and consistently applied:

• Post-Incident Testing: After a workplace incident has occurred
• Reasonable Cause Testing: Strong, objective reason to suspect impairment
• Return-to-Work Testing: Following rehabilitation after a substance-related issue

Once an employee tests positive for drugs, safety considerations become paramount.   

Case Study: Drug Testing at Work Following an Incident

A 2024 decision from Alberta’s Court of King’s Bench demonstrates how the employer’s obligations can result in the termination of employment.

Workplace Incident & Drug Testing

In this case, an employee was involved in a motor vehicle collision at a worksite. Following the incident, the employee completed a drug test, which confirmed the presence of cannabis in the employee’s system. The employer informed the employee he would have to complete the company’s substance abuse program and participate in random testing for a period of 24 months as a condition of continued employment. 

Refusal Leads to Termination

The employee refused to participate in the mandated substance abuse program. As a direct consequence, his employment was terminated for cause.

Rationale for Termination

The Court found the employer had just cause to terminate the employee’s employment, citing several key factors:

• Clear and Reasonable Policy: The employer’s drug and alcohol policy was clear, unambiguous, and well published. 
• Employee Awareness of Policy: The drug and alcohol policy was available to all employees and regular training was conducted by the employer.
• Safety-Sensitive Environment: The employer was involved in the construction industry where safety is of utmost importance and drug testing at work following workplace incidents is reasonable. 
• Accepted Practice: Random drug testing as part of a return-to-work protocol following a positive drug test is an accepted practice in inherently dangerous industries.
• Willful Refusal: The employee’s deliberate refusal to comply with reasonable policy requirements, particularly following a safety incident, warrants termination for cause. 

Human Rights Context

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 note that refusing to comply with drug testing at work, particularly after a safety incident, can impede on the employer’s ability to satisfy the duty to accommodate under Alberta’s human rights laws, which supports the basis for just cause dismissal.

Employee Rights and Obligations

Obligation to Maintain Safety

Employees have legal and moral duties to their employer and their colleagues to maintain a safe workplace. They have a responsibility to comply with valid drug and alcohol testing policies and participate in related programs and accommodation plans.

Right to Privacy

Any drug testing at work inherently intrudes on an employee’s privacy. To respect an employee’s right to privacy, any testing must be:

• Justifiable: Clearly connected to a legitimate workplace concern, such as safety or performance. 
• Proportionate: The level of intrusion must match the risk.
• Respectful: Conducted in a manner that protects the employee’s dignity as much as possible. 

H3: Protection Against Discrimination

The Alberta Human Rights Act protects individuals from discrimination based on various grounds. If an employee has a drug or alcohol addiction, it may be considered a disability under human rights law. It’s important to note that recreational drug users generally are not protected under human rights legislation if their drug use leads to job performance issues. 

Navigating Drug Testing: Strategies for Employees and Employers

For Employees: Know Your Rights

If you’re subject to a workplace drug testing policy or have been asked to complete a drug test:

• Review the Company Policy: Familiarize yourself with your employer’s specific drug and alcohol policy so you understand when and how testing can occur. 
• Seek Clarification: If you are unsure about any aspect of your employer’s policy or their request for you to participate in testing, ask for clarification. 
• Know the Risks of Refusal: While you can refuse a drug test at work, this decision carries significant risks, including disciplinary action or termination. 

For Employers: Know Your Obligations

Employers should ensure their drug testing at work policies are:

• Clear and Comprehensive: Well-written, unambiguous, and accessible to all employees.
• Consistently Enforced: Applied fairly and uniformly across the workforce. 
• Legally Sound: Compliant with both occupational health and safety legislation and human rights laws, including the duty to accommodate.
• Context-Specific: Tailored to the risks of the particular industry and job roles. 

Why Legal Advice Matters

Navigating the complexities of workplace drug testing at work and cannabis use can be challenging for both employees and employers, which underscores the importance of professional legal guidance.

Peace of Mind – Clarity Before You Act

Implementing or being asked to complete drug testing at work can be stressful. Legal advice provides peace of mind before you make any decisions.

Clarity – Understanding Your Rights

A legal professional can explain your rights as an employee or your obligations as an employer under Alberta law, giving you certainty on your next steps. 

Strategy – A Plan That Works for You

Whether you’re an employee facing drug testing or an employer developing a policy, a tailored legal strategy can help protect your interests and ensure compliance. 

Contact Us for Legal Advice 

If you’re facing termination or have questions about workplace drug testing at work in Alberta, you connect with a Calgary employment lawyer at Cashion Legal. 

This article is intended to help educate the general public and 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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