Court Holds That Smell of Marijuana in a Vehicle Does Not Justify Drug Testing Under OH&S Legislation

There has been a great deal of discussion and litigation across the country about the extent to which OH&S legislation can be used to justify drug testing.  In a recent Nova Scotia case, a supervisor of a municipal labourer claimed he smelled marijuana emanating from the worker’s truck.  The worker denied that the odour of marijuana was present and the supervisor allowed him to continue to work.  A few hours later the worker was called into a meeting and was asked to submit to a drug test based on the municipality’s substance abuse policy.

The worker admitted he was a recreational user of marijuana and that he believed what he did outside the workplace was not the employer’s business.  The worker openly admitted that the drug test would likely come back positive.  The worker was referred by the municipality to a substance abuse professional and refused to answer any questions about his off duty drug use.  The worker was terminated for refusing to cooperate with the substance abuse policy.  The worker’s union challenged the termination and the worker was reinstated by an arbitrator.

The employer sought judicial review of the decision and asked the Court to impose an indefinite suspension until the worker cooperates with the substance abuse policy by answering questions about his recreational marijuana use.   The employer argued that it must protect public safety under the OHSA and had to take measures against the risks of marijuana use by an employee who operates a motor vehicle.  It was suggested that the employee had a legal obligation under the OHSA to cooperate with the employer’s risk assessment with respect to his drug use.

Both the arbitrator and the Court had great difficulty with the positions being advanced by the employer.  It was held by the arbitrator and confirmed by the Court that reliance on the mere smell of marijuana for triggering the substance abuse policy, in the absence of any other evidence of impairment and without making further inquiries was unreasonable in the circumstances.

The employer asked the Court to take a “new approach” to cases involving allegations relating to occupational health and safety.  The employer argued that as a result of stringent OH&S legal obligations, arbitrators should be required to find that an employer’s OH&S concerns are legitimate unless the union can clearly show that the employer’s position has no merit.  The Court categorically rejected this argument and pointed out that the legislature had not passed any law which required arbitrators to take a different approach to cases involving OH&S concerns.

Decisions such as this one are driven by their facts and in our view the employer’s case had a number of serious problems.  It is difficult to understand why the supervisor would have allowed the vehicle to continue to be operated if he believed the worker in the truck may have been impaired by a narcotic.  Secondly, the employer had no other evidence of how any alleged substance abuse by the worker impacted the workplace.  In fact, the employer did not even have evidence that the worker was abusing marijuana at all.

The mere fact that the worker admitted using marijuana outside of the workplace is not enough in and of itself to trigger the application of a substance abuse program in most circumstances.  There needs to be some credible evidence of a nexus between the substance abuse and the workplace.  The fact that marijuana is an illegal substance does not remove the obligation to link the substance abuse to the workplace.

One can certainly sympathize with the employer’s position about the impact of OH&S obligations on discipline cases.  It is often frustrating for employers when arbitrators reinstate employees who commit safety infractions.  However, this case is yet another reminder that just cause is not thrown out the window when OH&S disciplinary issues arise.

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