Original article posted on High Times.
By Adam Drury
On October 17, 2018, cannabis became legal for all adults across Canada. But already, some Canadian citizens are finding their right to cannabis stripped by workplace policies that prohibit off-duty cannabis use. The Toronto Police Service and Air Canada have already implemented bans on off-duty cannabis consumption. And this week, the Ontario government’s mass transit agency Metrolinx announced a similar ban. Going forward, Metrolinx is prohibiting all workers in “safety sensitive” positions from consuming cannabis, even on their off time.
Metrolinx says private off-the-clock cannabis consumption violates “fit for duty” policy
Metrolinx is a regional transit agency in Ontario that employs more than 3,700 people. And now, some of those workers are facing an ultimatum: stop consuming cannabis or find another job. On Monday, Metrolinx announced an update to its “Fit for Duty” policy. The policy update added a ban on cannabis consumption by employees “in safety sensitive positions.”
But the ban isn’t just against consuming cannabis at work or clocking in under the influence of marijuana. The ban also applies to an employee whether they’re at work or not, on duty or off. “Recognizing the safety-sensitive nature of Metrolinx’s operations and workplace, the Fit for Duty policy establishes Metrolinx’s requirements, expectations and obligations in respect of employee fitness for duty,” CEO and president Phil Verster wrote in an email statement.
Transit workers union will mount legal challenge to overturn Metrolinx cannabis ban
Transit workers, as might be expected, are not taking kindly to the ban. Many are concerned that the ban violates workers’ legal rights to privacy, not to mention their new right to legal, regulated cannabis. Additionally, many transit workers are challenging the idea that a cannabis ban has any relevant impact on public, transit, or worker safety. “What will be next, a ban on off-duty alcohol use?” asked Chris Broeze, president of the Amalgamated Transit Union, Local 1587.
Broeze called the Metrolinx cannabis ban “extremely disappointing,” while John Di Nino, national ATU president, called it a ‘hugely invasive policy.” Di Nino thinks the policy will likely impact most Metrolinx employees, and many have already contacted him about their concerns. The union is currently reviewing its options to mount legal and other challenges to the Metrolinx policy “to protect our members’ constitutional rights,” Di Nino said.
It’s so far unclear what prompted the Metrolinx policy in the first place. The Amalgamated Transit Union reports “zero incidents” relating to cannabis and transit or workplace safety among its members.
The legality of a ban like Metrolinx’s is also uncertain. Canada’s federal law, the Cannabis Act of 2018, does allow employers to set workplace drug and alcohol policies. The law does protect patients with an authorization for medical cannabis treatments from workplace sanctions. But non-medical use cases do not have the same protections.
For workers in safety-critical jobs, however, blanket bans on cannabis use will likely become more common. Companies, like Air Canada, often cite data about the lingering effects of THC and the difficult of testing for THC “intoxication” as justification for the bans. At the same time, however, there is not substantial data showing that personal cannabis use impacts workplace safety.