By: Matthew R. Letson

On June 15, 2015, the Colorado State Supreme Court made headlines in a case brought by an employee who was fired after failing a random drug test at work. The Court accepted that the Plaintiff was never high at work, meaning that he was fired for legally smoking marijuana at home. Colorado was one of the first States to legalize recreational marijuana, which is likely why this seemingly regressive decision made headlines. As attitudes around marijuana use shift in the United States, Canadian employers and employees should know that employees prescribed medicinal marijuana here have far greater rights than appear to exist for employees in Colorado and other U.S. states.

Background: The Plaintiff in the Colorado case, Brandon Coats, became a quadriplegic in a serious car crash. He was prescribed medicinal marijuana to control violent spasms and found that the marijuana was effective. In 2010, while he was employed by a satellite T.V. company as a telemarketer, was randomly selected for drug testing. Before being tested, Mr. Coats told his employer that he would likely fail as a result of his medicinal marijuana use.

While the company acknowledged that Mr. Coats had never been intoxicated (“high”) at work, it applied its zero-tolerance policy and fired the Plaintiff when he failed the test. The termination was upheld at all levels of court up to the Colorado State Supreme Court. In Colorado, the case turned on the fact that, while medicinal marijuana use was legal Colorado, it was still illegal under federal law. Given the conflicts between the federal and state laws, the Colorado Supreme Court held that the Defendant employer was justified in its zero-tolerance policy and that Mr. Coats’ termination was justified.

What Would Happen In Canada?

The Canadian system would likely be much more favourable to Mr. Coats than the treatment he received in the Colorado justice system. Of course, in Canada, recreational marijuana use remains illegal but medicinal marijuana is legal.

Unionized Workplaces: It appears that Mr. Coats workplace was not unionized. In Canada, if Mr.Coats had been part of a union, it is highly doubtful that he could have ever been subject to random drug testing without the union’s express agreement. Recent case law from the Supreme Court of Canada severely limits the ability of employers to unilaterally impose random drug and alcohol testing on unionized employees. The Supreme Court recognized the possibility of an employer imposing random drug and alcohol testing unilaterally for employees in clearly safety sensitive positions and where there is a demonstrated history of alcohol or drug abuse in the workplace. In most other circumstances, random drug and alcohol testing would have to be negotiated with the union and could not be imposed by the employer unilaterally.

Non-Unionized Workplaces: For non-union employees, the landscape is somewhat different. The rationale used by the Court in the union context is protection of privacy. While there is a recognized privacy right for unionized employees, the same cannot be said for non-union employees for the most part. An employer could easily insist on a contractual clause for nonunion employees that allowed for random drug and alcohol testing and immediate termination upon a positive sample. If random testing wasn’t written into a contract, an employee might be able to argue that the employer constructively dismissed the employee by imposing random testing after the employee had already become employed, but constructive dismissal is not usually an easy argument to make. In any event, it is unlikely that an employee in a non-union context could prevent an employer from imposing random drug and alcohol testing except in limited circumstances.

Even though an employer in the non-union context could justify random drug and alcohol testing, the ability to discipline for a positive test would be dependent upon human rights’ law and the requirement to accommodate employee disabilities. Where an employee suffers a medical condition which is being treated with the use of medicinal marijuana, human rights’ law in Canada would require the employer to accommodate that drug use unless the employer could demonstrate that it was unduly hard to allow that accommodation. In Canada, an employee who is an alcoholic or habitual drug user would also have to be accommodated to the point of undue hardship if the alcohol or drug dependency were found to be a disability. This might require the employer to assist with drug and alcohol cessation programs or other reasonable accommodations before imposing discipline.

Returning to Mr. Coats’s case, if he were employed in Canada, the fact that his medicinal marijuana was prescribed for chronic pain and spasm control would weigh very heavily in his favour. The employer would have to demonstrate that it could not accommodate this off-duty drug use to the point of undue hardship in order to justify termination. In the case of marijuana, especially with the employer’s admission that there was no evidence that the employee had ever been high at work, this would be extremely hard for the employer to do.

Drug Testing Ineffective: There is plenty of evidence that random drug testing, in particular with respect to marijuana, does not detect current impairment. The difficulty in testing for the presence of marijuana is that someone who has consumed marijuana can have the active ingredients in their blood and urine for many days or weeks after consumption without any noticeable impairment of their skills or judgment. As a result, the reasonableness of the use of random drug testing is highly questionable in the case of medicinal marijuana. Given these limitations, where an employee with a chronic illness treated by medicinal marijuana is subjected to random drug testing, even the practice of random drug testing itself may be hard to justify from a human rights’ perspective. Even if the random testing can be justified, it is highly unlikely that an employer would be successful in terminating the employee and demonstrating undue hardship.

Positive Marijuana Test Not Just Cause: Even in the case of an employee who uses marijuana recreationally, random drug testing may not be justifiable given the inability to demonstrate impairment. Even if the random drug testing were contractually allowed, the employer may face difficulties in justifying termination of an employee who tests positive for marijuana given the inability to demonstrate impairment as a result of such testing. An employer, in order to justify termination without notice, must demonstrate that the reason for termination amounts to just cause. Where there was no evidence the employee was impaired at work, a Court could easily find that termination for a positive marijuana test was not just cause and reason that the employee’s off-duty conduct should not result in termination. Given that recreational marijuana use in Canada is still illegal, an employer may, where the employee’s morality is a factor in their employment, still be able to justify termination for just cause due to a positive drug test, but the likelihood of success for the employer would still be small.

All the same, employees who illegally use marijuana and other drugs should understand that they do so at their own risk with the potential of losing their employment as a result if their employer does engage in random drug testing, though there are greater protections for unionized employees. Those who require treatment with medicinal marijuana would have much stronger protections in Canada than are apparent in the United States, at least in the State of Colorado.

The bottom line is that, at least in Mr. Coats’ case, he certainly would have had a very different outcome to his case had he been employed in Canada. He likely would have obtained success both in the courts and under human rights’ legislation, especially since his position was not safety-sensitive. It may be advisable for employees who require treatment with medicinal marijuana and who may occupy a safety-sensitive position to disclose their disability and treatment to their employer so that reasonable accommodation can be made for their marijuana use. An employee in this situation should likely first consult a lawyer for proper legal advice and strategy as to how to introduce the concept to their employer. While the laws in Canada are more protective of employees, attitudes surrounding marijuana use may vary by employer, and employees are likely still sensitive to their potential vulnerability to discipline or termination should they make disclosure of medicinal marijuana use.

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