Cannabis-use ruling sets dangerous precedent for employers

Feb 13, 2020

In a recent opinion piece published by the London Free Press, the labour lawyer Howard Levitt discusses his concerns regarding a recent order set by a British Columbia court as an ‘unfortunate and dangerous’ precedent for employers concerned with public safety.

Earlier in November, Metro Vancouver’s transit authority, TransLink, was ordered to stop random drug screening of a SkyTrain attendant, David Solomon, who had tested positive for cannabis during a routine medical examination. Although SkyTrain attendants are usually involved in activities such as fare inspection, in emergency circumstances, they can be required to take control of a train. According to Levitt, in such a scenario, an impaired employee could cause a ‘tragic massive accident.’

“Testing broadly for cannabis use is the only way to ensure employees in safety-sensitive positions are not impaired on the job. Legality has nothing to do with it. The fact that a drug is legal does not give all employees the right to use it with impunity, even in their own free time. When it comes to cannabis, it simply isn’t good enough to tell employers they have to wait to test until they see signs that an employee is impaired at work. It certainly isn’t good enough to tell them they have to wait until an impaired employee causes an accident.”

Labour lawyer, Howard Levitt

Although TransLink has no existing policy prohibiting off-duty cannabis use by its employees, Levitt proposes that employers have the right to be cautious. After having failed a drug test which was administered as part of a routine medical exam, Solomon was obligated to undergo twice-monthly urine tests and counselling despite the conclusion of medical assessments which determined he did not have a cannabis use disorder. The case illustrates the difficulty in establishing a balance between commuter safety and privacy of employees when it comes to off-work legal and recreational cannabis consumption.

Current cannabis drug tests make it difficult to establish when cannabis was consumed, with tetrahydrocannabinol (THC), its main active ingredient, being detected for days or even weeks after cannabis use.

“Until the effects of cannabis are better understood, employers are well within their rights to institute outright bans on recreational use for employees in safety-sensitive positions.”

Labour lawyer, Howard Levitt, to London Free Press

Moreover, Levitt suggests that employers considering an off-duty cannabis ban should also be sensitive to potential human rights issues, since employers are obligated to accommodate disability, and cannabis can be used medicinally.

According to Levitt, the TransLink case demonstrates that cannabis legalization was ‘rushed through’ for political gain, rather than becoming implemented following ‘robust, science-based reconsideration of prohibition.’ Moreover, the legal expert suggested that more data on the short- and long-term effects of cannabis is needed to help employees create policies to improve public safety without compromising it due to “shielding employees’ off-duty vices from scrutiny”.