Why a Scent-Free Policy Not a Solution in the Detection of Cannabis Impairment

Posted: 10 Aug 2018 09:04 AM PDT

Source: http://www.slaw.ca/2018/08/10/why-a-scent-free-policy-not-a-solution-in-the-detection-of-cannabis-impairment/

There is a recent article that suggested that implementing a scent-free or fragrance-free environment policy would help employers know if their employee is high at work from cannabis use, and what actions to take when they catch them high at work.

Most people are familiar with smoking dried cannabis in hand-rolled cigarettes, pipes or water pipes-but people can consume cannabis in many forms, including: “vaping”; eaten in cannabis-infused foods called “edibles” (e.g., cooking oils and drinks); applied as oils, ointments, tinctures, cream and concentrates (e.g., butane hash oil, resins and waxes); and of course, ingested as oral pills and oral sprays.

Similar to cigarette smoke, and perhaps to a lesser degree alcohol, cannabis smoke has a strong, distinct-and for many, unpleasant-odour.

The article repeated what we all know by now that is, “Unlike alcohol, marijuana use can be detected in the bloodstream weeks after ingestion, and levels of THC (the active ingredient in marijuana) do not correspond with levels of impairment. As a result, there is currently no medical test that accurately or reliably indicates the level of a person’s impairment due to cannabis use. What’s more, current human rights law does not permit pre-employment or random drug testing, for use or impairment.” Therefore, the article suggests that employees may be asked to adhere to any scent-free or scent-sensitive workplace directive by allowing the employer to regulate the odour of cannabis as a prohibited scent in the workplace, that will help in the long run determine whether an employee uses cannabis and may be high on the job if the employer smells cannabis on his or her person.

This solution offered in the article is partly based on an interpretation of the Southwell and Van Bloedau (2017 BCHRT 83) and Von Bloedau v. Transcom Worldwide (North America) Incorporated (2014 HRTO 67) decisions that purports to say that employers have an additional right to discipline employees who emit extensive body odour (not related to a medical condition), causing uncomfortableness and upset in the workplace. In addition, the Kovios v. Inteleservices Canada Inc. 2012 HRTO 1570 was also relied on that makes it obvious that an employer retains the right to terminate employees once it has met its inquiry and accommodation obligations (“It appears to the author from the outset, that Kovios [the employee] had a positive obligation to identify to Inteleservices [the employer] what her accommodation needs were and to clearly explain why the solutions that had been attempted were not adequate.” Kovios who was hypersensitive to scents could not work where scent-free policies were not enforced but were just a guideline.)

Once legalized on October 17, 2018, cannabis will no longer be illicit. In this respect, cannabis will become more similar to alcohol, and less like cigarettes, legal, but with impairment potential. Employers have the authority to prohibit its use in the same way they prohibit the use of alcohol on their premises, as well as during working hours or otherwise as appropriate depending on the position and work environment (for example, while “on call”).

The solution offered in the article, in my opinion, is not compatible with the right to legally use and possess cannabis in Canada once it is legalized, and cannot determine if an employee is high in the workplace. If employers follow the advice offered in the article, they may end up in front of the human rights commission or tribunal or the courts with employees challenging their right to smoke recreational cannabis at home or outside of the workplace.

Having clothes that smell like cannabis does not mean an employee is impaired at work or smokes at work. It may just mean they smoke it at home regularly and it is in entrenched in their clothes or skin. It also does not mean the employee smelling like cannabis cannot perform their job. And just because the employer or a co-worker may smell it doesn’t mean that other people smell it.

Moreover, the lingering smell of cannabis on a person at work alone may not be grounds for probable cause.

In several cases, dismissal or discipline based solely on the testimony of witnesses present at the time, or the mere observing or smelling of marijuana use without corroborating physical evidence, has not been found to be compelling enough to satisfy arbitrators that the employer has established its case. The Supreme Court of Canada has stated that there is only one civil standard and in all cases, the evidence must be carefully scrutinized and must be sufficiently “clear, convincing and cogent” to establish the balance of probabilities test.

Why a scent free policy is necessary, but not a solution to detect impairment

Always remember that an employee may smell of cannabis, but it doesn’t mean they have been smoking at work. They could have smoked before work or the night before or the employee has been associating with people who have been smoking cannabis. Cannabis lingers on clothes, body and breath for several hours, especially if the person has not showered before coming to work. But it can still be unpleasant for your other employees having to work with the smelly colleague.

Because of the strong and sometimes unpleasant odour of cannabis for some, employers may have to deal with scent-related complaints about employees who use cannabis. Therefore, employers should consider examining their current scent policies or create a scent policy to address the smell of cannabis smoke and, if it doesn’t already, add in cigarette smoke and alcohol odour too. The policy will also ensure these complaints are covered for cannabis that is smoked or applied topically.

Employers have to tailor the policy to the specific needs and concerns of each business. For example, while some employers may want to prohibit marijuana consumption for safety reasons, others may wish to prohibit it for image reasons.

For example, it may not be good for the company’s image if employees who work with the public smell of marijuana.

Even though an employee may be “fit for work,” that individual’s use of medical marijuana may nonetheless pose problems that would not occur with traditional medications. For example, where an employee must use marijuana during working hours, there is a potential that the individual will smell of cannabis afterwards. As a result, the company may have an interest in protecting its public image that could be negatively affected by the appearance of an employee using marijuana during working hours, even though the employee may not be impaired and may be using the drug legally.

In the event that an employee cannot safely perform his duties due to his use of medication, or that the employee cannot work with the public while using marijuana, the employer must attempt to accommodate the employee’s underlying disability to the point of undue hardship. The employee’s accommodation should be addressed through the company’s established policies and procedures or addressing disability and accommodation issues, and any accommodation efforts should address both the employee’s use of marijuana, and the underlying disability that the employee is treating. There is some precedent to suggest that limiting an employee’s interaction with the public in such circumstances would not be unreasonable (See Bosal Inc. and C.A.W.-Canada, Local 1837 (2005), 136 L.A.C. (4th) 437).

Employers should have a scent-free policy among other policies related to drugs and alcohol use in the workplace. It is important to safeguard yourself, your employees and your clients/customers.

Employers should ensure that this policy and other related policies are communicated to all staff.

A sign indicating that the workplace place is scent or fragrance free would also go a long way to inform all employees and visitors of your expectations.

If your infrastructure allows, you could designate a smoking area and install a high-velocity exhaust fan system.

How to tell someone they smell of cannabis and it is a workplace issue

You deal with it the same way as any other hygiene issue.

If an employee is regularly attending work with a smell of cannabis, and it is becoming a challenge for those individuals that have to work with the employee who smells of cannabis, or it is becoming an image or operational issue, take the employee to a private place and discreetly away from other employees, express your concerns or inform them of a complaint, and ask them for an explanation. The incident should be treated respectfully, confidentially and in a non-judgmental manner. Employers should ensure that any discussions and resolutions are documented.

Don’t focus on the fact that it’s a cannabis smell. Focus on how the odour is disrupting the workplace (i.e., strong offensive odours can aggravate allergies or linger in enclosed areas). Ask the employee if they have any ideas about how to reduce the smell.

You should also refer the employee back to the company policies on drugs and alcohol and a scent-free workplace.

Disciplinary action, up to and including dismissal, may be appropriate if there is a violation of one of the policies and evidence of impairment. However, management cannot jump to the disciplinary stage without considering the reasons for marijuana consumption (i.e., medical purposes). Management needs to be trained, in this case, to understand that the employee is not automatically impaired, and secondly, have a discussion with the employee-and not necessarily a disciplinary one.

If the use of marijuana affects the employee’s ability and proper performance of their duties, action needs to be taken to protect the worker, the other workers and the workplace.

If the poor hygiene or body odour is due to recreational marijuana use outside of work and is not related to a medical condition or another protected ground, the employer is at liberty to warn the employee that changes are required and discipline the employee if improvements do not occur. However, set out your expectations for improvement and a date when you will meet again to review the situation. Monitor the situation discreetly and hold your review meeting. Hopefully the situation will improve. If it doesn’t, you have an obligation to your other employees to progress the matter formally.

Talk to the employee at least once more before commencing formal procedures against the individual. If the employee’s odour doesn’t improve, stick to your written disciplinary policy and procedures.

Always proceed with caution and consult your lawyer, although the courts/tribunals have sided with employers who enforce disciplinary action against employees’ strong body odour, it may still violate human rights legislation if not done properly.