Drug Consumption in the Workplace
Bob and Doug had been working as janitors at the local university for 17 years. One day they were sitting in Bob’s car during their break in the campus parking lot when university security arrived. They knocked on the window and when it descended the reek of pot blasted the security officer in the face.
They were so enveloped in their clouds themselves that they did not realize how obvious it was. When asked if they had been smoking pot or had pot they brazenly denied it. Once they were told that the police would have to be involved they fessed up and handed over their baggie. They continued to deny, however, that they had smoked any pot on campus. Bob and Doug were fired and their union grieved. The university relied upon their possession and consumption of an illegal substance on campus, Bob and Doug’s access to locked areas of the campus, their safety-sensitive positions, the fact that they worked in proximity to students and their dishonesty when confronted. Given that janitorial staff works unsupervised they need to be able to be trusted. The union argued that there was nothing safety-sensitive about the job and that after 17 years Bob and Doug should have been subjected to progressive discipline, not fired out of hand.
Ultimately the arbitrator upheld the termination. It was the honesty factor that sunk them. Right until the end of the arbitration Bob and Doug insisted they had not actually smoked the pot on campus although the arbitrator was convinced otherwise. If they had fessed up to the whole truth and expressed regret, things might have ended up differently. But the arbitrator decided that since they do work on their own and have to be trusted, the termination was justified.
When marijuana is legalized, having a prescription will not necessarily give you a pass for consuming before or during work.
Prescription painkillers are legal now but you are not allowed to be intoxicated at work, prescription or no prescription. I am told by friends already using marijuana for medical purposes that there are strains which minimize the intoxicating effects.
Employees will still have to disclose consumption, their prescription and the details of what they are consuming. The employer is always going to have the right to put safety first. Forklift drivers would waste their time applying.
Bob and Doug’s high times and sad tale point out another issue.
When confronted by an employer with your bad behaviour, fess up and apologize. Almost invariably, the lying only compounds the situation. It’s a hard enough case for your employment lawyer to make when you have engaged in the bad behaviour. It becomes almost an impossible hill to climb once you’ve clearly lied to your employer.
In the panicked moment of confrontation, employees often don’t follow this advice. When I am advising employers about to have one of those confrontational meetings, I coach them on exploiting that propensity.
Start the conversation casually. Don’t reveal how much you know about what the employee did. Give them opportunities to lie and deny before they know what goods you have on them. Only reveal your hand and the full information you have once they have boxed themselves in with their dishonesty.
On the other hand, I tell them to listen with as open a mind as they can. Sometimes there are innocent explanations for behaviour the employer never thought of. Everything has to be weighed in context.
If the employee has compounded a serious offence with dishonesty, terminate immediately. If there is an explanation provided which appears to be genuine, don’t rush to a decision.
Ed Canning is a labour and employment lawyer with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at firstname.lastname@example.org
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