Members

Weed In The Work Place: An Employers Road Map

- by Don Stewart

A commentary by Trucking HR Canada

ANTICIPATION

Employers need to review their workplaces and identify situations or areas where impairment would be either problematic or dangerous. The legal regime currently provides protections to employees even in workplaces that are highly safety sensitive. This includes industries involving transportation or employing heavy machinery, hazardous materials or chemicals.

There are cases which support the proposition that in the workplace, random drug or alcohol testing is not allowed in non-hazardous environments even where actual impairment exists. Termination for cause in these instances appears to require progressive discipline first. In hazardous environments, unless an employer can establish that the job site is safety sensitive and there is at least a general issue of drug use and impairment at work, the imposition of random testing and summary termination is problematic. Tests which provide evidence of drug usage, but dononot establish actual impairment, often dononot support termination for cause. Employers need to be aware of these issues and undertake appropriate reviews.

PREPARATION

In view of the limitations on employers, even where safety is an issue, policies and procedures must be created or enhanced to deal with dope-induced impairment. Behaviours that will not be tolerated need to be listed. Clear disciplinary procedures need to be identified. By doing so, in the absence of situations where cause might exist, an employer may take preventative and remedial action, such as suspension or progressive discipline. Even in safety sensitive workplaces, employers should begin the work to create or strengthen infrastructures that will respond to these concerns. Most decisions have been in the unionized environment. They indicate that the more forgiving and supportive a drug policy is, the more likely it is that discipline and intrusive testing will be accepted. For instance, zero tolerance policies have been dealt with more harshly by arbitrators than those which offer other options before discipline is imposed.

EDUCATION

All staff must be kept advised of the development or modification of any policy and they should be aware of its contents. This can be done by means of general meeting or information bulletins on internal websites. Employers must keep on top of the inevitable legal changes that will occur as the legal landscape evolves. The failure to do so will be costly, particularly if a policy or procedure is inadequate or wrong. Huge penalties or damage awards could prove catastrophic, not to mention the negative impact on a companyyys reputation. Where fair and clearly worded policies exist, the courts and tribunals tend to be more disposed to render favourable decisions.

The road ahead will be bumpy. If companies carefully develop a road map, there will be fewer blind alleys and detours on the journey for employers and human resource professionals to negotiate.

If any of our members are wishing to read the submission paper in regards to HR Challenges of Marijuana in the Workplace are encouraged to contact:

Terry Shaw

Manitoba Trucking Association

tshaw@trucking.mb.ca

204 632-6600