The legalization of marijuana in Canada has changed the way many people use, view, and understand the drug. But while marijuana use is legal, that doesn’t mean that it can be used anytime or anywhere. Much like alcohol, there are laws, regulations, and expectations around when and where it is appropriate to use marijuana recreationally.

This can have significant impacts in the employment law world, where it’s possible that people don’t necessarily understand questions such as whether it’s ok to consume marijuana before work and, if not, how long before work they should refrain from doing so.

In a recent decision from the Court of King’s Bench of Alberta, an employee was terminated following a workplace accident once it had been discovered he had marijuana in his system. The employee took the employer to court for wrongful dismissal, and the court looked at the employer’s reaction and drug policy.

Employee is discovered to have THC in his system following workplace accident

The plaintiff in the matter had been a long-term employee of the defendant, working his way up from a labourer to a site superintendent for the company that ran a construction business. On June 3, 2022, the employee was involved in an automobile accident at a worksite. A drug test was administered following the accident, and it was discovered that the employee had THC levels in his body above the threshold permitted by the employer’s drug and alcohol policy.

The employer referred to its drug and alcohol policy and told the employee he would have to undergo a substance abuse assessment and also participate in a substance abuse program as a condition for returning to his job. When the employee refused to do this, he was terminated. This led the employee to claim he was wrongfully dismissed. He came to the courts seeking 24 month’s pay in lieu of notice. His position was that the employer’s drug and alcohol policy was unreasonable and that the employer failed to honour the terms of his employment contract, which called for progressive discipline as opposed to immediate termination.

The employer’s position was that the employee’s termination was reasonable and consistent with the drug and alcohol policy. He was not terminated immediately for breaching it; rather, he was given the option to participate in the assessment and substance abuse program.

The court looks at the employer’s drug and alcohol policy

The court first examined the employer’s drug and alcohol policy, which it adopted in 2009. The policy stated that their worksite is a safety-sensitive one and that drug or alcohol testing would take place after a workplace incident if four conditions were satisfied. They are:

1.      The test is intended to eliminate drug or alcohol use as a possible cause of or a contributing factor to an incident;

2.      The employee’s explanation of the incident must be considered.  If the employee provides a reasonable explanation (e.g. structural or mechanical failure), this is to be weighed against the need for conducting a test;

3.      There must be some evidence to indicate that the actions or omissions of the employee contributed to or caused the incident and

4.      The incident must be an event involving one (1) or more of the following:

i.           Fatality;

ii.         Critical incident;

iii.        Bodily injury to self or others;

iv.        Property damage;

v.         Environmental damage;

vi.        In management’s opinion, A near miss or relatively minor incident could have resulted in any of the above.  The proximity of harm must be realistic, and the potential harm must be significant.

The court understood that if a test came back positive, an employee may be required to go through the steps asked of the employee in this situation.

Employee provided training on drug and alcohol policy

While the employee did not have a written contract with the employer, the court was satisfied that a person accepting employment with them would have a reasonable expectation that they would have to abide by their policies. The employee said he did not understand the policy or the consequences of breaching it. Still, there was evidence that he received annual training on the policy from 2012 to 2020 and again following the pandemic.

The court came to understand that not only was he aware of the policy, but as part of his job, he provided training on it and provided training on over 100 occasions.

In looking at the policy, the court found it to be reasonable, unambiguous, well-published, and consistently enforced. People regularly work around heavy machinery in the construction industry, and safety is extremely important. The court wrote,

“The difficulty in the present circumstances was his wilful refusal to participate in the SAP and submit to random drug testing during the return to work period.  Faced with an employee who had a positive drug test, (the employer) had no alternative but to insist on compliance with its Drug and Alcohol Policy, which I have found to be reasonable.  (The employer) is required by law to maintain a safe workplace and could not, in the face of a positive drug test, accede to (the employee’s) position that he not be required to participate in the SAP or be subject to random drug testing in the return to work period.  Returning (the employee) to work on a safety-sensitive job site in any capacity was not a viable option.  Further, pursuant to human rights law, (The employer) has a duty to accommodate employees with disabilities, including substance use disorder.  (The employee’s) refusal to undergo a substance abuse assessment as part of the SAP prevented (The employer) from meeting its human rights law obligations.”

The court found that the issue here was not so much the policy as the employee’s refusal to abide by it and failure to follow the directions he was given after testing positive for THC. The court found that his refusal constituted a repudiation of his employment contract, and as such, his claim was dismissed.

Calgary Employment Lawyers Representing Albertans Who Have Been Terminated From Employment

Have you been unfairly terminated due to a workplace drug policy violation? Getz Collins and Associates, experienced employment lawyers in Calgary and Strathmore, can provide experienced guidance and representation. We specialize in defending employees’ rights and seeking just compensation. Let us help you navigate complex employment law matters and pursue the best possible outcome. Schedule a consultation today by calling 587-391-5600 or by visiting us online.