The importance of having a drug and alcohol policy was stressed to members of the Canadian Home Builders’ Association during a talk on newly legalized recreational marijuana use in the workplace.
Keynote speaker Pamela Bragg from Sarkany Management touched on the rights and risks to employers in the construction industry during a CHBA event at Columbo Lodge.
“Recreational cannabis is the same as liquor in the workplace — it can’t be done,” Bragg said.
“Do your salespeople go out and have a glass with customers at lunch? Do they drink on the golf course with customers? We’re not talking about that. We’re saying as far as on the workplace, there are no rules — it’s just flat out never.”
Bragg noted employers have the right to conduct drug testing, have an impairment-free workplace and terminate employees in violation of drug policies, so long as the policy is compliant with the law.
“These are not complex policies,” Bragg told a crowd of about 120 people. “I’m writing one right now. … It’s about eight, nine pages long, including a title page.”
Bragg told the crowd employers need to be wary of terminating an employee over drug use as it can lead to a wrongful dismissal claim if not in compliance with the company’s drug policy or the law, or a human rights claim if the employee has an addiction.
In some cases, Bragg said, recreational users could be afforded human-rights protections for marijuana use if they prove they have an addiction to it — which is the same for alcohol, prescription drugs, medicinal marijuana and illicit drugs.
She said an employer would need to send an employee to a substance-abuse professional or doctor to determine if they are fit to work.
“Nine times out of 10, it’s going to be no when it comes to cannabis, but if it’s just CBD, which is the non-psychoactive component in cannabis, they may be able to be accommodated, but it’s not automatic that you accommodate them,” Bragg told the crowd.
Bragg said employers need to try to find a suitable job for such employees.
In the event there is no appropriate work available, Bragg said, the employee could go on a company’s disability plan or employment insurance.
“You can’t fire them,” she said.
She also noted that employees with a medicinal prescription don’t get special treatment and cannot be impaired at work.
When it comes to conducting pre-employment drug testing, employers cannot choose not to hire a person based on a positive result.
“You are breaching human rights because you are now making an employment decision not to hire based on a presumed disability,” Bragg said, advising that employers never say a hire was rejected solely due to the results of a drug test.
Bragg then asked the crowd if they were conducting reasonable suspicion and post-incident testing.
The query was met by silence.
“You can — no law is stopping you from doing this type of testing,” she said, noting there are guidelines that must be met to warrant a reasonable suspicion test.