A Most Canadian Caper: The Tale of the Vaping Zamboni Driver
The legalization of cannabis has and will continue to affect a great number of things in our country — from policing to residential leasing to the air quality at the Santa Claus parade this year in the author’s hometown of Vancouver.
Notwithstanding this significant shift in public policy, the legalization of cannabis has not impaired the rights of employers in this country to insist that employees report for work unimpaired by the use of drugs. The legalization of cannabis has also brought about more stringent restrictions on driving after using cannabis. This would presumably also apply to operating a Zamboni.
In Kindersley (Town) v. CUPE, Local 2740, 2018 S.L.A.A. No. 4 (Hood), Arbitrator Hood, Q.C. chaired an arbitration board tasked with hearing the dismissal grievance of a municipal employee fired for vaping cannabis while driving a township vehicle. The grievor used cannabis for a medical purpose and pursuant to an authorization from his physician. Astonishingly, the physician permitted him to vape 10g of cannabis from a “primarily cannabinoid … plant” during the workday. (This is the equivalent to 10 to 20 joints each workday.) The only restriction imposed by the physician was that he “not operate the Zamboni, forklift or lawn mower for a 20 to 30-minute time after vaporization”.
The employer accepted this medical note and accommodated the grievor by placing him in the parks department, where it allowed him to vape during his workday and implemented the 20 to 30-minute restriction on operating equipment that was imposed by the physician.
The grievor subsequently went to a conference on a work trip. He drove two co-workers to the conference in a township vehicle. After his co-workers reported that he had vaped while driving, the township investigated and subsequently terminated the grievor’s employment for just cause. In its termination letter, the township concluded that the grievor had operated a township vehicle while impaired by drugs.
The arbitration board found that there was no evidentiary basis to prove the grievor was impaired but concluded that notwithstanding the inability to prove the specific offence set out in the termination letter, the grievor’s conduct justified his dismissal. The board reasoned that the use of cannabis while driving a township vehicle was unsafe, contrary to the employer’s policy and the accommodation agreement, and illegal.
The arbitration board also held that it was appropriate for the township to be influenced by the grievor’s disregard for the seriousness of his misconduct. He had stated during the investigation, “I don’t know why this is such a big deal because I smoke on my way to work.” Finally, the board emphasized that its decision should not be taken as endorsing the 20 to 30-minute restriction on operating equipment as acceptable or safe.
The result in this case is not surprising. The case does, however, highlight a number of issues and challenges that employers face with employees’ use of medical cannabis and the accommodation thereof, including the following.
- Ask questions. Employers do not need to accept a medical note that leaves more questions than answers. It is difficult to understand how consuming the equivalent of 10 to 20 joints per workday was a reasonable authorization. Follow-up questions or a further assessment would have been appropriate in this case.
- Solicit an expert opinion. If a physician suggests it is safe to drive a vehicle like a Zamboni 20 to 30 minutes after vaping cannabis, it would be reasonable to solicit a second opinion from a physician who may have greater expertise with respect to the effects of cannabis use.
- All cannabis is not created equal. The most commonly referenced cannabinoids in cannabis are delta-9-tetrahydrocannabinol (THC) and cannabidiol (CBD). The physician in this case authorized the use of a “primarily cannabinoid” plant. He likely meant to refer to a strain with high levels of cannabidiol. This is not necessarily the same thing as a strain with near zero levels of THC, the impairing cannabinoid in cannabis. It is reasonable and appropriate for employers to ask specific questions about the particular strain being consumed, the amount and timing of consumption, and the method of consumption.
- Proving impairment can be tricky. Current drug tests prove recency of use but do not necessarily prove impairment. Nevertheless, it is now illegal for any person to operate a vehicle with 2ng/mL of THC in his or her blood. Employers can and should insist that employees comply with this limit while operating a vehicle.
Drew G. Demerse is a partner at Roper Greyell LLP in Vancouver where he provides strategic and practical advice to employers on labour, employment and workplace human rights issues. His proactive approach has made him a trusted partner and advisor to the management teams of a broad spectrum of businesses in Canada. He is also frequently engaged for workplace policy development and has particular expertise drafting and implementing drug and alcohol policies.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.