Termination for cause, health and safety obligations and workplace disability accommodation are some of the most challenging employment law issues Canadian employers need to navigate when managing their workplaces. A recent case from Alberta, Quong v Lafarge Canada Inc., provides significant insights for employers, especially those operating in safety-sensitive industries. Here’s a breakdown of the key points and how you can apply them to your workplace.

Background of the case

A long-term employee of a cement manufacturer was terminated after testing positive for THC, the active chemical in cannabis, following a minor workplace accident. Despite the positive test, the employer did not immediately terminate the employee but instead required him to undergo a substance abuse assessment and participate in a treatment program as a condition for returning to work. The employee refused, arguing that the company’s Drug and Alcohol Policy was unreasonable and an invasion of his privacy. 

The employee was terminated for cause, and brought a claim for wrongful dismissal, arguing among other things, that the employer had failed to engage in sufficient progressive discipline prior to termination. 

The employer argued that their actions were reasonable and consistent with the company’s Drug and Alcohol Policy, particularly given the employee’s role in a safety-sensitive position. The employer maintained that the policy, including post-incident drug testing, was essential for maintaining a safe workplace.

Faced with an employee who had a positive drug test, the court found that the employer had no alternative but to insist on compliance with its Drug and Alcohol Policy which the court found to be reasonable. Employers are required by law to maintain a safe workplace and the employer could not accept the employee’s position that he not be required to participate in the substance abuse program or be subject to random drug testing in the return to work period.

Returning the employee to work on a safety-sensitive job site in any capacity was not a viable option. Further, pursuant to human rights law, the employer had a duty to accommodate employees with disabilities, including substance use disorder. The employee’s refusal to undergo a substance abuse assessment as part of the substance abuse program prevented the employer from meeting its human rights law obligations. The court found that the employee’s willful refusal to abide by a policy critical to ensuring a safe workplace was incompatible with continued employment. The employee’s refusal constituted a repudiation of his employment contract. 

Employee drug testing in safety-sensitive positions

The court reaffirmed that employers in industries involving physical risks (like manufacturing) have a legitimate interest in drug testing employees in safety-sensitive positions, especially post-incident. The court cited case law which has noted that lingering effects of cannabis could impair employees’ ability to safely operate machinery, even if the consumption happened outside of work hours. This precautionary principle underscores that safety trumps personal privacy when it comes to workplace accidents and potential hazards.

Drug and alcohol policy: Clear, consistent, and enforceable

Employers should take note that the employer’s Drug and Alcohol Policy, in this case, was found to be reasonable, well-publicized, and consistently enforced. This consistency played a critical role in the court’s ruling that the policy constituted an implied term of the employment contract. It’s essential for employers to ensure that their drug and alcohol policies are:

• Clear: Employees should fully understand the rules and consequences of violating the policy.
• Consistent: The policy must be applied uniformly across the workforce to avoid claims of unfair treatment.
• Safety-focused: In safety-sensitive workplaces, employers are entitled to impose drug testing, including random tests following positive results, to maintain a safe working environment.

Return-to-work agreements and random drug testing

In this case, the employer sought to impose a Last Chance/Return to Work Agreement on the employee, including random drug testing for two years. The court found that this was a reasonable industry practice. Employers should consider adopting similar protocols for employees returning to work after positive drug tests, as long as the agreements are consistent with the overall drug policy and proportionate to the nature of the job.

Conclusion: Ensuring workplace safety and legal compliance

This case serves as a reminder for employers to:

• Regularly review and update their drug and alcohol policies.
• Ensure employees in safety-sensitive positions understand the implications of these policies.
• Provide clear paths for rehabilitation and return-to-work protocols following a positive drug test.

By maintaining comprehensive policies that balance safety with employee rights, employers can safeguard their workplaces and reduce the risk of legal disputes.

By Lexa Cutler