A few weeks ago, we looked into how Alberta plans on dealing with the legalization of marijuana and the safety of our roads. However, marijuana use also affects other aspects of life and the safety of others. Many employers are concerned about their employees using marijuana and then coming to work and operating heavy machinery or dealing with sensitive material. One industry that is particularly worried about the effect of the new marijuana legislation is the energy industry.

Marijuana and Rigs

Many energy companies that deal in oil and natural gas have rigs around the country. People often live on camps (such as in Fort MacMurray) and work 12-hour days for 14 days straight, and then have 7 days off. This rotation varies depending on what rig you work on and what company you work for. For workplace safety purposes, living on camp generally comes with company-imposed limits on certain behaviours and activities. In particular, many camps forbid the drinking of alcohol on site, and naturally, doing drugs is also prohibited since most are currently illegal. Nevertheless, sometimes people do end up drinking if they go off camp, and sometimes may do drugs.

Worker safety is obviously the primary concern. Accidents can happen on rigs even when people are fully rested and completely aware of their surroundings. Add a marijuana or other high, or the influence of alcohol, and things could become even more dangerous. There are safety meetings before each shift, and people have to be diligent to ensure that things do not go wrong while the rigs are in operation. For example: if during a shift, they are drilling, the workers have to pay close attention to ensure nothing goes wrong with the drill or the drilling, including preventing items, like tools from falling into the hole.

One of the other concerns is finding the right people to hire. Most companies have drug testing before candidates are hired, and others will require their employees to do drug testing before going to certain rigs or sites. One of the problems with drug testing, particularly with marijuana, is that the active ingredient in marijuana can stay in a person’s system for a long time, even after the high is over. Which means when people get tested, they may not have used marijuana in a few weeks. Someone who may actually be right for the job and is not a heavy user may be overlooked because they smoked marijuana a few weeks prior to their job interview. The industry already has difficulties with finding enough qualified individuals for jobs that are physically demanding and in remote locations.

What Can Companies Do?

Advocates of marijuana argue that the industry is overreacting. Companies that operate in states like Colorado, where marijuana has been legalized for almost 4 years, have adapted their policies. The state now allows companies to terminate or refuse to hire workers who fail drug tests for jobs that are considered “safety-sensitive.” Other advocates argue that because these jobs already have a zero-tolerance policy in place, this legalization will not make much of a difference. So far, the statistics in Colorado have not shown an impact on safety. However, it is a bit hard to isolate the effect of the legalization in that state, given the shifting employment landscape.

Energy companies and other businesses will have to adapt to this challenge. The Petroleum Services Association of Canada is working on guidelines to help companies adapt and change their own drug and alcohol policies. Some large companies, including those outside the energy sector, are looking to implement mandatory random drug testing for employees. However, this will likely face stiff opposition from unions, and there is the potential for lawsuits arising out of such policies.

An Example of Legal Problems with Policy Changes

Recently, there has been such a case. Suncor, a Calgary-based energy company, introduced random drug testing for “safety sensitive jobs” in 2012. The union representing its employees filed a grievance with an arbitration tribunal, stating that this policy violated the workers’ rights. The tribunal ruled in favour of the union in 2014, and Suncor appealed the decision to the Court of Queen’s Bench and won that appeal.

The union went on to appeal that decision to Alberta’s Court of Appeal and the court dismissed the challenge in 2016. The union then went on to request an interim injunction while they sought leave to challenge the policy before the Supreme Court of Canada. An interim injunction prevents one party from doing something pending the final decision of the case. In this instance, it prevents Suncor from implementing their random drug testing policy until after the Supreme Court of Canada has heard the case and made a decision on it. Suncor attempted to have the interim injunction overturned, but on February 28^th, 2018, the Court of Appeal dismissed that challenge and the interim injunction will remain in place.

Changing workplace policies can be difficult when the law is about to change. Employers want to ensure their policies are fair, effective, and legal. This is why obtaining legal advice from experienced employment lawyers is useful and necessary. At HMC Lawyers, we have the knowledge and skills to help you navigate this unknown change that could affect your business. To speak with a member of our Employment Team, call 1-800-480-3534 or contact us online.