Is Testing for Marijuana on the Job Harassment?
Recently, an arbitrator held that Air Canada was justified in testing a flight attendant’s hair for use of marijuana. While this occurred in a unionized environment, the story contains important lessons for employers in both the unionized and non-unionized fields. When properly tailored to the workplace, these types of workplace policies can be enforceable and can defeat potential claims of human rights violations, harassment, or privacy violations.
Why testing for use of marijuana on the job was not a violation of human rights or harassment?
There was reasonable cause for the drug test to be administered. Two fellow cabin crew members who lived with the employee submitted written reports regarding a change in behaviour and alleged use of marijuana. One report stated that the employee “seemed dazed every other day”. In addition, “dark humour” jokes were made about hijacking an airplane.
It goes beyond saying that there are heightened standards of safety in the air travel industry. Given these reports, there was a legitimate safety interest involved.
Air Canada’s Alcohol and Drug Policy explicitly laid out that workers must inform their employer if they are using any medications that might cause impairment and/or impact their ability to perform their duties safely and effectively. As well, the process for administrating the test and the test results were “subject to the usual safeguards”, helping to defeat any privacy violation claims. Further, the hair strand test was necessary because there was no less invasive way of establishing whether the employee was inebriated during work hours. In short, in this case, the scale leaned less toward harassment and more toward a reasonable exercise of managerial rights.
Lessons from this case
To begin, employer policies should be specific to each industry and workplace. Industries like air travel or health care may have justifiably stricter regulations to ensure safety and avoid issues. Importing these sorts of standards into workplaces with less dangers can backfire for employers. They may find themselves unable to rely on such policies when trying to terminate employees for cause. This can result in significant exposure to legal and financial liability.
Further, even with well-drafted policies, it is important for employers to use discretion in the use and enforcement of them. The Air Canada incident passed muster because the drug test was only ordered in response to reasonable cause of imminent safety concerns, and that it was necessary in order to establish impairment during the carrying out of the employee’s duties. The greater the danger to safety, the more potential violations of privacy can be justified. If management is quick to utilize drug testing even if there is a weak safety argument, then employees may be more likely to succeed with grievances and litigation relating to same.
Finally, proper tailoring of workplace policies can help employers ensure that they can use them when it matters and weaken any claim against them by employees.
How can Whitten & Lublin Help?
An experienced employment lawyer can assess your policies and advise on best practices for applying them. If you would like more information about how Whitten & Lublin can help you navigate drafting and enforcement of workplace policies, please contact us online or by phone at (416) 640 2667 today.
Author – Sohrab Naderi