Cannabis Impairment Must be Proven to Support Termination in the Workplace

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Most employers have a zero tolerance policy for the recreational use of cannabis in the workplace. However, in a recent Ontario labour arbitration decision, this ubiquitous and ostensibly straightforward response now has a unique caveat. Discipline, even up to termination, will only be upheld where the evidence supports impairment and not solely consumption.

MSC Toronto o/a Continuous Colour Coat Limited v. United Steelworkers Local 3950-65 is a case involving a safety-sensitive workplace. An employee was found to have used cannabis during the lunch break and returned to work, breaching company policy. The quality manager, who was also on lunch at the time, witnessed the employee smoking a hand-rolled joint and testified to this extent. When confronted, the employee denied the claim and responded in an impudent manner that included shouting derogatory remarks at the operations manager. The employee was administratively suspended. Following an investigation into the incident, the employee was terminated.

That alone, however, was not enough to justify dismissal. The arbitrator found that a policy breach had occurred based on the eyewitness’ observations and report of a distinct smell of cannabis. Nevertheless, the arbitrator reinstated the employee because the employer failed to prove impairment. The quality manager waited until the next day to report the incident, rather than immediately after. Accordingly, any opportunity to assess impairment had passed. There was no evidence of diminished performance or alertness on the employee’s part. Balanced against the employee’s nine years of service and the absence of any safety incidents, the arbitrator concluded that a three-month unpaid suspension was more suitable for the insubordinate behaviour, rather than termination.

For employers, there is a silver lining to this ruling. The outcome largely supports that employers can successfully prove cannabis use solely through eyewitness testimony to establish a policy breach. Despite this, the decision reinforces a limit on discipline whereby employers cannot rely on after the fact suspicions of impairment. This creates a higher evidentiary burden, particularly when cannabis is involved. Nevertheless, impairment can be proven if it is reported and assessed in a timely manner.

Key Takeaways for Employers

Going forward, employers should treat cannabis-related incidents as both a conduct issue and an evidentiary exercise. To establish impairment that would support termination, employers must act immediately and beware of any of the following signs:

  • Changes in demeanor or behaviour;
  • Red or glossy eyes;
  • Difference in speech patterns; and
  • Delayed motor coordination.