With cannabis being legal recreationally in Canada, employers are faced with considering how to defend a zero-tolerance approach to the drug’s use when accurate testing is impossible. The only way to do so, according to Horizon Occupational Health Solutions, is to “demonstrate how the detection of THC could result in impairments that would directly affect the critical/essential task(s) of their safety-sensitive and/or high-risk occupations.” Currently, the only way to legally take action against an employee is with the institution of a Bona Fide Occupational Requirement (BFOR), which proves an overlap of the drug’s use with the critical/essential task(s) of the occupation. It is important for an employer to make attempts to ensure the rights of the employee are not being discriminated against and they should understand the Human Rights Act of Canada, as well as the Supreme Court of Canada’s suggested three-step test.
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