Why Safety Rules Must Be and Be Perceived as Reasonable

Safety Rules: Like many controls on safety-sensitive worksites, our preferred line of defence is to eliminate or completely control hazards through design and engineering. Administrative controls must mitigate residual threats that companies cannot, for lack of a better phrase, engineer out of the work process. Managerial measures include controls levered by training, policy and procedures and personal protective equipment requirements. Together they are designed to motivate or encourage employee behaviour to eliminate further, mitigate or control residual safety risk.

We rely on safety rules and rule compliance for many reasons, including to protect employees’ safety. To set and administer rules effectively, we pay heed and study the realm of human behaviour.

Many industrial safety-sensitive sites operate on a reasonably authoritative chain of command structure to organize and execute work. However, due to the often large geographic footprint of industrial worksites, usually in dynamic, open environments exposed to changing factors, companies must rely heavily on autonomous rule compliance, which means that individuals follow the rules when not in the line of sight of one who directly supervises them. Thus, safety performance relies on the cultural norms and buy-in of teams working to keep each other safe. Individual compliance and peer enforcement rely on a hearts and minds approach or buy-in into the rule. This requires leaders to explain and inspire, rather than solely direct and instruct safety leadership when setting and administering controls. Therefore, we need to be willing to get into the questions. Why is a rule essential? What prompted management to install the expectation? Why is it in my interest and my coworkers’ interest to follow these rules? And, what makes this rule reasonable? These are the types of questions that need to be embraced and explored with crews to achieve a hearts and minds buy-in. If our team does not understand why a rule is made or does not believe it is reasonable, things can go wrong.

To illustrate, I’m going to reflect on one of my favourite courses at university. It was lead by a quirky history professor who studied a phenomenon called jury nullification in early English common law. He referenced heavily Thomas Andrew Green’s book, Verdict According to Conscience. During this time, England defined murder by statute. Hence, the courts were not authorized to find anything inconsistent with the statute’s definition of murder. The crime of murder was described as a death where a human had contributed to that death. If a court found that someone had committed murder, the automatic consequence was capital punishment. It was a capital offence, and within this construct, there was only one defence, which was self-defence. Self-defence was also very rigidly defined. The individual relying on self-defence had to be smaller than the would-be attacker, had to be wielding a smaller weapon, or the individual that was fallen had to have been wielding a more deadly weapon than the individual relying on the self-defence. A person depending on the defence also needed to be unable to escape the would-be attacker. All three of these things need to be in place for a jury to find a person not guilty by self-defence.

My professor and historian Thomas Andrew Green was appropriately suspicious of how this may have played out in real-life in jury trials. They compared jury trials’ findings of fact during that timeframe against the facts issued by coroners reports in the same cases.

They found discrepancies between the coroner reports and jury findings of fact. Case in point, one coroner report found that the husband walked into his home where he found his wife with another man. A struggle ensues. The husband used a knife to stab the man. The man dies. A jury in the same case found the following. The husband encounters a man outside of his home. The jury found the man had an axe (the axe, appearing out of nowhere), and the husband, while trapped against the edge of a cliff (which also appeared out of nowhere), was unable to escape. The jury concluded the husband used the knife to defend himself against the man wielding an axe.

In that case, the jury didn’t find that the rule was reasonable. The jury did not find the consequence suitable. Hence, rather than issue an unjust ruling leading to an unjust consequence, the jury searched for and found the facts required that would enable them to rule the individual not guilty by self-defence. So essentially, the jury nullified the unreasonable rule. Thomas Andrew Green refers to this as jury nullification.

The same can happen to us if our workers do not believe that our safety rules are reasonable or reasonably administered. Leaders must continue to accept questions regarding why we do the things we do. Invest in the effort to explain and inspire because failing to do so may result in our safety rules being nullified out in the field when we’re not looking.


A prime example of this points to the Alberta Construction Industry’s experience in administering the COAA’s Canadian Model for Providing a Safe Workplace: Alcohol and Drug Guidelines and Work Rule. Earlier versions of the model relied upon almost exclusively peer and front line supervisory administration of the rule in two basic scenarios: 1) a relatively prescriptive post-incident testing rule, and 2) a more subjective “reasonable cause” testing rule. Often, owners and safety representatives found a 20-25% non-negative result from post-incident testing (a lagging indicator as an incident or near miss would already have occurred). One in five or one in four safety incidents occurred concurrent to the presence of alcohol and drug levels higher than that allowed under the safety-based work rule. The forgoing coincided with a low-level of the frequency of peer or supervisor-initiated reasonable cause tests (a control arguably more preventative than the post-incident testing).

Hence the discretionary aspects of the safety rule were nullified.

Upon further explanation, peer and front-line supervisors were reluctant to administer the rule for three key reasons: 1) discomfort confronting one on their substance use, especially with the stigma attached to alcohol and drug use and abuse, 2) they did not feel the testing regime was fair in respect to the marijuana panel, which measured levels associated with use on personal time away from work, and 3) they did not believe the consequences associated with a positive test were fair for those who recreationally used marijuana. As a result, many employers who installed the Canadian Model on their worksites had a significant portion of their work rule nullified by its workforce, drastically reducing the safety efficacy of the practice, which was its primary purpose in the first place.

There are answers to the concerns of peer enforcers and front-line supervisors. However, in that case, leaders were not equipped to demonstrate the rule’s reasonableness or appropriateness. The rest was history. Supervisors and peers’ reluctance to administer the reasonable cause portion of the Canadian Model prompted owners to impose site access testing to fill the void in preventative controls regarding their Alcohol and Drug Administrative controls.

2020 Initiative and Industrial Relations List for With People Inc.

Inventory of service activities delivered to clients in 2020, a report by Sam Kemble

A Word from the Executive Operations Officer 

We diversified our client base and service offerings during the year, added capacity, strengthened our balance sheet, and improved our processes. We supported organizations to meet extraordinary and complex challenges through various service offerings.

We are inspired by our client’s character, understanding and compassion towards their employees, union partners, and stakeholders, all during a year that could strain any relationship. We are grateful to continue serving industries and enterprises in Canada.

We wish all well as we approach the New Year.

Respectfully submitted,

Sam Kemble

Executive Operating Officer

Industrial Relations – Negotiations

This year in industrial relations, we bargained collectively with various Building Trade unions in Saskatchewan, CUPE in Edmonton, Unifor in Windsor, and UFCW in Edmonton. Also, we engaged in First Nation Mutual Benefits Agreement Negotiations West of Edmonton.

Industrial Relations

We continue to deepen our service and experience in general industrial relations through grievance administration, progressive discipline support, collective agreement interpretation, group lay-off and bumping-process support, coal-to-gas transition supports, recall list administration, temporary layoff supports, arbitration case management, contracting out, severance liability included in a temporary layoff context, right to refuse unsafe work in a COVID-19 context, pension plan and health benefits and insurance administration, and common employer and successor employer analysis.

Policy Development

We engaged in robust alcohol and drug policy development and costing models, participated in public policy creation and review through the Edmonton Chamber of Commerce, and developed several policies and practice documents in employment administration.


Ongoing training and workshops were developed and delivered, covering performance management, labour and employee relations, industrial relations, anti-harassment, bullying and violence. Work continues to migrate these modules to an online delivery format for broad and safe accessibility.



Significant time has been invested in enhancing our craft recruitment process, including modules for equity hiring and onboarding. We supported clients to develop a 48-hour rule hiring process to coincide with hiring hall scenarios. Cost models have been developed and simulated for craft sourcing, recruitment and onboarding for numerous multi-year projects. Our firm provided direct recruitment support for a plant south of Edmonton, a shutdown near Regina, road construction in Calgary, a pipeline in BC, a plant west of Edmonton, an institutional project in Terrace, recruitment for project administration in Northwest BC, a manufacturing facility south of Edmonton, several residential projects in the Greater Vancouver area, an infrastructure project in Lloydminster, and a roadbuilding project in the Greater Vancouver area.

We have adopted a positive bias into our recruitment process that prefers Indigenous, BIPOC and women candidates.


2020 brought the need to support clients with Covid-19 response measures, including service for essential service employees, implementing masking, hygiene, and physical distancing policies while restructuring work arrangements through staggering shifts and rotating site presence protocols. Various sick and other leave provisions required interpretation within a pandemic context. We also ensured rights and obligations to refuse unsafe work were adequately adhered to within a COVID-19 context. The pandemic also brought unique factors requiring a considered review of human rights and employment statute-protected accommodations, including leave and work accommodations. Many employers also found it necessary to navigate both the in and the out-of-work-from-home transitions.

We are grateful for the opportunity to be of service during such challenging and dynamic times. 

Industrial Relations – Operations / Execution

We engaged in front-end engineering and design (FEED) support for significant capital projects’ workforce delivery and the management component. We increased our forecasting and costing analysis capacity and conducted field execution productivity studies, developed project costing studies, and conducted labour posture comparison studies for construction and maintenance. We developed and supported wall-to-wall craft recruitment models. 

Justice and Social

We provided Jordan’s principal policy, advice, and advocacy within our social justice portfolio. We developed Treaty-based education agreements and policies.

Together with expert volunteers, we are about to release an employer mental health and wellness practice document.

We commenced service to the Board of the Colbourne Institute for Inclusive Leadership.

As a firm, we are taking an aggressive approach to positive bias recruiting to ameliorate disadvantaged and historically disadvantaged groups’ inequities.


With People Inc. Internal Capacity

In 2020, the firm increased recruitment, project controls, human resources and data science capacity.

We made investments in achieving a CPHR Certification, investigative report writing training, first aid training, and Principles of Health and Safety Management.

We afforded access to professional coaching to staff to increase career development and the strength of our team.

We created an operational contingency reserve for our operations to de-risk the potential for Covid-19 to impact our staffing levels. We also adopted an accounting policy to carry a fully funded severance liability on our balance sheet.

Throughout 2020 we continue to develop apps for release in 2021, including a force ranking app – 90% complete, a witness credibility app – 70% complete, a quantum of discipline review app – 70% complete. Also, we rebuilt our workforce applicant tracking and onboarding system – 70% complete.

In the ongoing interest of advancing awareness and education in human resources and employee and industrial relations, we maintained our educational Blog, Podcast, and Video Channel (hosted on YouTube).

Visit our homepage for more information about our human resources and industrial relations firm with offices in Edmonton, Alberta, Prince George and Victoria, British Columbia.

Short Term Service Offerings

Short Term Service Offerings

Current environment  Heavy layoffs commenced in 2015 and more are expected in 2017. Wage freezes and wage rollbacks remain a water cooler topic. Capital spending reviews and cuts are in the headlines.  There are many signals that 2017 will continue to be about managing costs and running current operations as lean as possible.   But there is still major project work and maintenance for existing operations underway, and bids to submit to secure future work.  In 2017 companies are properly wary about adding staff or making long-term spending. Essential services and activities will go on but with a sharp eye on costs. There is less organizational slack in most organization charts which may increase the need for temporary or ad hoc assistance for either technical expertise or to have access to increased variable capacity.   

Services you may need:  You may need the plan to source labour and scale up rapidly for maintenance purposes or due to changes in schedule.  And you will need to ensure costs to get workers to the site are tightly controlled. Flying tradespeople across the country every shift may be justifiable in a tight labour market but makes little sense when local or regional options exist.

Labour relations or employee investigations may arise that require staff dedication of time or expertise that no longer exists within your organization.  These are examples of areas of short-term services where Workforce Delivery can help. 

Our knowledge and experience can allow us to build a labour supply strategy that takes the current market into account. We can provide plans and execute them as needed.  

Another area of concern in active projects and worksites is managing spikes in labour relations activity such as misconduct, substance abuse or increase in complaints.  Tension and animosity among workers can build due to the job market outlook or knowing that layoffs may be coming soon.  You need cost-effective options to deal with increased labour relations activity.  Or you may be facing what you consider to be regular workload levels resulting from managing your labour force, but the team you manage has been drastically reduced.  

Your internal capacity and expertise are not what it was two years ago, but the demands remain.  Workforce Delivery can pick up challenging labour relations issues for you such as collective bargaining, grievance handling and complex investigations.  

Where With Peopel Inc. can help – Effective and cost-conscious solutions.  With People Inc. can offer ad hoc labour relations and labour supply services for places where project work is still underway and existing operations in all sectors continue.   

Cost pressures may create an opportunity (or pressure) to review labour supply costs from top to bottom.  

Approaches or sources that were never up for serious consideration in the past may now make sense.  

With People Inc. can be the source for unbiased analysis of the value provided by various labour-sourcing strategies together with transition plans.

The final call remains yours, but demands have never been greater for your decision to be based on critical screening of all the options on the table since 2015.  Our services for labour relations or labour supply can be provided on an ad hoc basis at an hourly rate.  Some common service types we offer:  

  • Single grievance or investigation file completion. 
  • Interim backfill of an unexpected vacancy of a labour relations manager or site role. 
  • Develop a labour supply strategy, with the option to execute that strategy, reporting back progress. 
  • Provide collective bargaining services for a full round of bargaining with one or more trades or unions. 
  • Fulfill labour supply shortfall needs including sourcing, screening, onboarding and booking of travel and accommodations.  

With People Inc. supplies its own phones, common business software and computers and workspace.  So none of the items represent an added cost to our clients.  For full rates and terms please contact us.  Our principal labour relations Practitioner, Sam Kemble have a combined 18+ years of experience in all aspects of labour relations.  


The Tightrope of Marijuana Prescriptions in the Workplace

The Tightrope of Marijuana Prescriptions in the Workplace

Legal access to medical marijuana has been increasing in Canada in recent years. Court decisions and regulatory changes have set the course, which has not always been a direct route. 

The most current published data from Health Canada confirms the trend of greater access. In 2009 about 4,000 individuals had obtained authorization to possess in Canada (CMA Policy: Medical Marijuana; citing Statistics Canada Health Canada: Marijuana for Medical Purposes, June 5, 2009). In 2013, active authorizations to possess were at 38,500 in Canada (Health Canada (2013) Marihuana for Medical Purposes). 

Of note, the trends in prescription have not been distributed evenly across each province. To demonstrate, refer to the above comparative graph of the percentage of the population by province with authorization to possess medical marijuana.  When interpreting the chart above it is also useful to know that a permit to possess issued by Health Canada is tied to a declared place of residence and workers often maintain a residence in one province and work in another. So the place of residence and place of work are both relevant in examining this Health Canada data. For example, Alberta hosted anywhere from 60,000-120,000 workers each year from 2004 to 2010, according to Statistics Canada and so some number of permits to possess issued in other parts of Canada could make their way to Alberta workplaces.  

Prescription marijuana cases push Labour Relations practitioners immediately into that balancing act between obligations arising from Human Rights and Privacy Rights legislation, versus competing obligations pursuant to Occupational Health and Safety legislation.  If you have not encountered the situation it is becoming more likely that you will. One of our Practitioners recently recruited 2000 skilled tradespeople in British Columbia. If the distribution was normally distributed we would expect 80 medical marijuana files (extrapolating from the chart above). Clearly, that is not the case. Many of those treated via medical marijuana would be managing conditions that would prevent them from fulfilling the physical demands of safety-sensitive positions in the construction industry.  Anecdotally, however, one of our practitioners:  

  • is aware of two(2) cases in Alberta in 2009, encountered his first (1) file directly in 2010 while managing six sites across Canada, and;
  • more recently, encountered four (4) files in one year (2013-2014) in British Columbia on the same site.  

With social and legal trends toward increased medical use and full legalization continuing, the acceptance and prevalence of medical marijuana in the workplace is only likely to rise.  But it is difficult to gauge the pace of change as there is no known data on cases of prescription marijuana entering the workplace.  Of course, full legalization does not mean it is permitted to be used in the workplace, but full legalization is likely to contribute to increased acceptance of medical use and turning up in your recruitment process and workplace.   

Questions to ask when a prescription collides with the requirements of a safety-sensitive position 

So when a medical marijuana prescription finds its way to your workplace, what do you do?  One approach is to separate the three main labour relations concerns.  

  1. First is the legality of marijuana in a worker’s possession when the marijuana’s source or form does not match the prescription or when it’s in the possession of a worker without any prescription at all.  
  2. Second, all of the health and safety concerns that flow from marijuana being on a worksite including concerns that extend beyond the individual with the prescription. 
  3. And third, the potential workplace impairment of the individual worker. 

The initial questioning from a front-line Labour Relations Officer concerned with health and safety risks to staff and the legality of possession should cover the following:  

  • Does the worker have a permit to possess marijuana from Health Canada? Request a copy of the permit to possess issued to the individual if they are going to possibly be carrying on a worksite or company property. A prescription to consume marijuana is a different legal matter than the right to possess marijuana.
  • How is the worker obtaining the marijuana? 
  • Does the worker have marijuana with them now or at the site?
  • Where is the worker keeping the marijuana while they are working, when they are commuting to work, or while residing on project-supplied accommodation?
  • Did the worker get searched or questioned by site security or airport security (in cases of a fly-in-fly-out work arrangement)?
  • If the marijuana was not transported from home then how was the marijuana obtained? From a co-worker or on the work site?  

These questions focus on the source of supply for the worker, and this line of inquiry can lead you to related issues that need to be addressed in order to maintain workplace safety.  If the source is on site, an investigation into who, when and where will be necessary.  For contractors doing business on a project site, this may involve coordination with security, site owners and other contractors on site.  

  • Does the form of the drug (dried plant, liquid, pill, etc) possessed by the worker match what is stated in the prescription?
  • Does the form of the drug (dried plant, liquid, pill, etc.) possessed by the worker match what is stated in the prescription? 

These steps should ensure the medication and items related to consumption match the prescription held by the worker.   Moving on to concerns of potential impairment of the worker, a Labour Relations Officer should explore the following: 

What restrictions have been provided by the doctor? Obtain the prescribing doctor’s direction on dosage, timing, a form of the drug, work restrictions and safety precautions. Like any prescribed medication, a doctor should have provided instructions on how to take the prescription and the limitations on the user when they are under the influence of the medication. It is not uncommon that employers need to seek more detailed information from the prescribing doctor. It is key to provide a full and detailed description of the job and site on which it is performed so that the doctor can provide informed direction.  

Once initial information gathering from the employee is complete, it would be wise to seek your own medical expert and have them enquire on the following points with the prescribing doctor:  

  • How was the dosage in the prescription determined? How long has the worker been a patient of the prescribing doctor?
  • Is the worker under any other doctor’s care for the condition for which the marijuana was prescribed?
  • How many other doctors have the worker visited in the past year?
  • Why were the form of the drug and the timing of the dosage prescribed as it was?
  • Is there any flexibility as to the form of the drug or the timing of consumption?
  • Is the form of the drug and method of consumption specified in the prescription?
  • Are other forms of the drug or methods of consumption acceptable according to the prescription?  

Using a medical expert to explore these questions may reduce risk related to when and how the drug is consumed or the form of the drug that may be brought onto the worksite. A discussion between medical doctors/experts may help to firm up the legitimacy of the process behind the prescription and thereby reduce risks if the prescription is followed by the worker.  Assuming you receive satisfactory clarification on the worker’s ability to legally possess and use marijuana, practical application of the worker’s rights and company policies in the workplace is the next step and should consider the following questions:  

  • How have we handled similar cases with prescriptions that impact the worker’s ability to work safely? Review the information you obtained from the prescribing doctor in past cases where workers presented a prescription for a medication with impairment effects. What you experienced may help you craft your initial requests to get what you need in a single document from the prescribing doctor. Lessons learned from the implementation of restrictions in the past can also be instructive. For example, if confusion on restrictions on the part of the worker was an issue in past accommodations cases then the details of that experience may help you to draft an agreement that confirms understanding and agreement by the worker on compliance with restrictions as a condition of being at work.  Lessons learned like this may not yield any quick fixes, but may help you avoid pitfalls or false assumptions. 
  • For the specific job of the worker, does the job description and job hazards analysis adequately describe the safety-sensitive aspects of the job? As with any case where medication presents a potential for impairment, understanding what portion of the job is safety-sensitive is key. If a set of duties that are safety sensitive can be eliminated and leave a meaningful set of tasks then the path for accommodation is defined. Consider providing more details or explaining the work context in a cover letter if the job description or job hazard analysis is brief or generic.
  • Do you (and your organization) understand the medical restrictions and have the ability to ensure compliance? For most alcohol and drug policies, the guidance for managing a prescribed medication would also fit with managing a prescription for medical marijuana. An employer can request further clarification on restrictions and should ensure the job and work site are fully explained and the safety-sensitive aspects of the job are presented. A team approach to designing and implementing the accommodations based on the restrictions is recommended to include the Supervisor, Labour Relations or Human Resources, health professionals, the worker and the union.

Once implemented, a supervisor with current training, access to reference materials and support from experts can be expected to manage the case day to day and serve as the eyes and ears of the organization to monitor ongoing compliance.   

Scenario Imagine you are a site Labour Relations Officer, who is informed by site security that marijuana was found in the room of Lee, a worker on the site.  When questioned by security, Lee provided a copy of a permit to possess and a prescription for marijuana. Site Security has offered to provide further support to you if needed, but has turned the file over to you.  After reviewing Lee’s records, you contact a supervisor and confirm there is no record with the supervisory team of Lee having a prescription. You meet with Lee in person, where he gives you the prescription and accompanying documentation and tells you the following:  I just got back to site and worked my first shift today and didn’t have a chance to talk with a supervisor about this new prescription. My last prescription didn’t have any side effects so I didn’t tell anyone. I guess that made me unsure about telling anyone this time. The prescription says I can smoke one small joint every day at bedtime, but I haven’t even done that yet this rotation.  You also read in the prescription that the marijuana in dried plant form is to be obtained as per the permit to possess guidelines set by Health Canada. The restrictions and warnings document attached to the prescription also says the patient should be aware of an impairment risk and should not operate machinery or vehicles and should avoid heights as the daily dosage represents an ongoing risk of impairment.  

So with this information in hand, what needs to be explored further?  

The first concern is the failure to disclose the prescription. If your employer in this case has adopted the Canadian Model v5.0 2014 as a workplace policy, then the employee has violated the Alcohol and Drug Work Rule by failing to notify a supervisor that they are taking a prescription drug that has potentially unsafe side effects. The employee also violates the Rule by working unsafely as they did not disclose the restrictions and could therefore not be following restrictions.  

The second concern would be determining what if any other violations have occurred in terms of using the drug. He stated that he did not smoke today, but has he smoked on any other day recently?  Also, is he using the marijuana exactly as prescribed and did he obtain it according to the prescription and permit to possess requirements?  If the marijuana was obtained in town nearby though an illicit source, that would violate the Health Canada to obtain the drug from a licensed source. Taking a medication that is not identical to what is prescribed means the prescription is not being followed.  

A third concern would be the level of detail in the prescription. If the restrictions were presented up front by the worker, could they be implemented safely?  Consulting with a medical expert can identify gaps and help to avoid pitfalls in the application, especially for a first-time contact with a marijuana prescription for a worker in a safety-sensitive position.  

A fourth concern is Lee’s doubt about the need to report the prescription. A review of training materials and signed documents on understanding the rules for prescription drugs is important. You need to verify if the employee was informed of the requirements and aware of the overarching general safety tenet to ask questions and confirm rules before beginning any work. You may also want to have conversations to confirm if there were any practices at the worksite that ran counter to the training and the policy. This is because confusion created by workplace practices that do not comply with policies can impact the culpability of the worker.   In the scenario, with several policy violations uncovered the investigation needs to be taken to completion. Assuming the violations are founded, the employer could consider disciplinary action, or potentially even termination if the worker’s actions were particularly egregious. In addition, the site owner may also issue a notice of a site ban to the worker to protect their interests in ensuring safety on site.

   Avoiding pitfalls in managing workers with a prescription Regardless of how or when the issue finds its way into your workplace, here are a few ways to avoid pitfalls when managing a worker with a marijuana prescription.  Keep policies, training and reference materials updated.  Update your policies, training and reference materials used by frontline staff and managers to ensure they are as current as possible.  Outdated terms, the assumption that marijuana is illicit/illegal in all cases, and the wording around drug paraphernalia are just a few of the areas that may need updates. 

It may be frustrating to think that you may be one court decision away from needing to update (again). But, your footing is solid if your organization is as current as possible on policies and practices and the only adjustment is in response to the most recent legal change.  

Know the site access implications when a new hire presents a prescription.  If the case you are handling involves a separation of the roles of the site owner, contractor and employer, then site access rather than the employment relationship becomes the first pinch point for prescription marijuana.  Perhaps your policies take prescribed marijuana into account, but the site owner’s policies determine site access. In many Canadian jurisdictions, a site owner has much more legal freedom in its decisions on-site access than does an employer managing an employee with a legally prescribed medication. Once site access is denied a condition of employment cannot be met by the employee and the employment relationship typically ends (unless there are other positions available within the company for which the individual is qualified, especially with a tenured employee). Talking through changes and grey areas with your site owner and partners is essential.  

Know the initial steps and questions when presented with a prescription for marijuana.  The consistency of case management will improve if you standardize what an employee is told and what is requested in the event a prescription for marijuana is presented. A well-designed document and a matching outline for supervisors on providing info on the work environment and job duties is an important component as well. That way you can spend your time on the most challenging parts of the case, rather than trying to create a checklist, or needing to update job descriptions and a job hazards analysis on the fly.  

Be aware that a worker may be experienced in presenting a prescription for medical marijuana.  Another observation, in over 50% of the files handled directly by our Practitioner, the subject employee had previously been intervened by another contractor for this issue. In every case of prior intervention, it was mishandled. For each of the mishandled files, human rights settlements compensating for back wages and damages ranged from the high five figures to just under the $200,000 range. This essentially made the individuals sophisticated with high expectations, watching very closely how the company was going to respond to their situation. Being prepared in general terms as outlined in the points above and then seeking expert advice during the process you are best equipped to deal with the experienced worker.  

Tread carefully.  Leave the medical issues to the doctor, but ensure that the doctor is informed.  As you start to consider the practical implementation of the restrictions, answering many of the questions that arise remains the doctor’s responsibility, hence the need for an ongoing interface. When, where and how the marijuana is consumed should be outlined by the doctor first. Once these parameters are set, accommodations can be fined tuned in order to manage perceptions and the impact on a safety culture if a worker will be consuming marijuana on duty or on-site.  

As there are no established protocols for dosage (Health Canada stated in March 2014:http://www.hc-sc.gc.ca/dhp-mps/alt_formats/pdf/marihuana/med/daily-quotidienne-eng.pdf) the restrictions placed on usage become all the more sensitive. There should be plenty of caution with dosages when the drug is first prescribed. Health Canada cautions that there will inevitably be less scientific rigour behind the dosage permitted than behind medicine dosages determined through medical study and subject to regulatory review.   

Define best practices for working in a legal grey area.  Part of the communication across the organization must be that prescription marijuana is an evolving legal issue. Your staff and organization do not have a fully fixed picture because there are legal precedents and changes yet to come that may change your policies and practices. Many people struggle with the grey area this creates for enforcing policy compliance and ensuring safety in the workplace. In particular, leaders in safety-sensitive operations often have a strong and understandable bias toward safety factors. And when there is doubt some err on the side of safety, medical accommodations and privacy rights take a back seat. Prior experience has taught many supervisors that messages are best received when they are black and white and the subtleties of this type of file can be easily lost or dismissed in the workplace. However, the need to balance these obligations should be emphasized. This is part of the tough reality of managing issues that force decisions to be made in the grey area where accommodations and safety meeting. Emphasizing critical thinking in front-line decision-making is key.  Second opinions, current training and resources and pausing (even if only for hours or minutes in some cases) can have a big impact on the outcome of workplace management of prescription marijuana issues.

Conclusion Regardless of how or when the issue finds its way into your workplace, here are a few ways to avoid pitfalls when managing a worker with a marijuana prescription.  Keep policies, training and reference materials updated.  Update your policies, training and reference materials used by frontline staff and managers to ensure they are as current as possible.  


Metrics Required to Justify Random Alcohol & Drug Testing

Metrics Required to Justify Random Alcohol & Drug Testing


In 2012 Suncor implemented random drug and alcohol testing for workers in safety-sensitive positions. Unifor challenged the policy alleging it infringed on privacy rights. In Arbitration, the tribunal ruled in favour of Unifor and this was later properly overturned by the Alberta Court of Queen’s Bench.


All agreed in this instance, that safety procedures are critical to prevent workplace incidents that could result in human or environmental disasters.

Suncor has a robust alcohol and drug program in place including education, training, reasonable cause, post-incident and return to work testing, drug interdiction procedures, policy and work rules, and counselling and treatment for those that required support.

Unifor challenged the presupposition that there was a pervasive problem with alcohol and drugs in the workplace (and in particular, within their bargaining unit) that would justify the potential privacy infringement associated with random drug and alcohol testing.

[T]he dangerousness of a workplace – whether described as dangerous, inherently dangerous, or highly safety-sensitive – is, while clearly and highly relevant, only the beginning of the inquiry. It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.
Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd, 2013 SCC 34, [2013] 2 SCR 458 [Irving] 

Suncor provided evidence of 2,276 onsite drug and alcohol incidents that did not delineate between type of employee, direct hire, contract employee, union or non-union. Unifor then argued in part that the evidence could not be relied upon, as said statistics could not be directly and solely associated with the Unifor bargaining unit members.

The Court found “[i]t was unreasonable for the tribunal majority to insist on “particularized” evidence specific to Suncor’s unionized employees.” Clarifying that:

Irving “calls for a more holistic inquiry into drug and alcohol problems within the workplace generally, instead of demanding evidence unique to the workers who will be directly affected…”

The Court further noted that the lack of a requirement for particularized evidence was supported by the integrated nature of direct-hire and contract employees working side-by-side. Caution should be used in co-mingling statistics in more segregated, discrete work scenarios. 


Employers must capture metrics on an ongoing basis regarding the performance and experience of their alcohol and drug work rules. If certain segments of your workforce are not deployed in an integrated manner, employers should include in the capture, statistics delineating employee type where it makes sense to do so. Examples of experience factors to track include:

  1. Positive tests,
  2. Site Access,
  3. Post-Incident,
  4. Reasonable Cause,
  5. Possession,
  6. Possession of paraphernalia,
  7. Refusals,
  8. Return to work agreements,
  9. Possession of products use to adulterate tests.

In addition, employers should track either directly or through a third party, the type of substance identified by the tests.

I have been on sites where over 70% of post-incident test results have correlated with positive results or possession of drugs associated with the cannabinoid panel. With the advent of legalization, more attention will be put on this particular class of substance.

This article relied upon the decision, Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313, and was inspired by an October 11, 2017 article written by Graeme McFarlane of Roper Greyell LLP, Justifying Random Drug And Alcohol Testing In The Workplace.

Please contact us if you have an interest in developing or reviewing your metrics capture of your Alcohol and Drug program.

Thank you for your time and we hope this is useful to you and your organization.

Developments in the intersection between theft and human rights

Developments in the intersection between theft and human rights

Facts Generally Unique to Medical Employment

Substance addictions in medical professions (involving circumstances where one has access to narcotics at work) have driven arbitral jurisprudence covering the unique intersection between criminal behaviour (theft) and human rights protection.

Unlike those addicted to illicit substances and/or those with the disease of alcoholism, access to the “drug of choice” can at times be more intensely and intrinsically linked to their place of employment. For instance, an alcoholic can simply go to the liquor store, and a person addicted to an illicit substance has already (necessarily) developed illicit, criminal connections for the purpose of procuring their chosen substance. A nurse who may be addicted to narcotics, cannot simply go to a store to purchase the substance and very often is not engaged in any other form of criminal activity, and therefore has not developed an alternate procurement strategy. As such, the addicted nurse may be “sole sourcing” from their provider of convenience…their employer. This fact set has driven some of the case law surrounding the intersection of criminal activity at work and human rights.

But for this case, since 2008 through the use of variously applied legal tests, a general pattern has formed. When a nurse’s termination for theft is challenged and when the nurse:

  1. suffers from an addiction
  2. establishes a causal link to the addiction and theft (i.e. theft of substance for which the nurse is addicted), and
  3. commits to and undergoes treatment and rehabilitation together with ongoing compliance with aftercare programs.

there has been a tendency for arbitrators to reinstate (absent back pay).

[Note: This article was inspired by an October 19, 2017 Michael MacLellan of CCPartners article published by Mondaq.com and is based on Cambridge Memorial Hospital v Ontario Nurses’ Association, 2017 CanLII 2305 (ON LA)]

 The Decision

The grievor admitted to stealing 2-6 Percocet tabs per shift and falsifying records to conceal the theft over a prolonged period of time (years). In addition, the grievor gave evidence that at no time did she consume the narcotics while on shift. Upon realizing this behaviour an investigation ensued which lead to the grievor’s termination. This termination, despite an acceptance of the causal relationship between the addiction and the theft, and the grievor’s progress in rehabilitation was upheld by the decision of the arbitrator.

Context of Decision

The context of this award is it follows 8-9 Ontario decisions that support reinstatement driven by a human rights argument for nurses who committed theft of a narcotic if the employee admitted to having an addiction to the substances stolen, and was committed to rehabilitation and treatment.

The award dedicated much attention to the concept of compulsion, that being, if the phenomenon of compulsion to commit the theft exists within the addicted employee because of their addiction, then they are less culpable, which has the effect of eliminating or reducing the quantum of discipline that would survive arbitral scrutiny (akin to the mitigation of penalty due to illness doctrine). This is what has evolved from the short-lived “hybrid approach” adopted by a number of BC arbitrations in and around 2008, which required a disciplinary or just cause approach to the culpable behaviour and an accommodation/human rights approach to the non-culpable behaviour (Gooding, 2008).

From the introduction to the hybrid approach and the “mimicking” legal frameworks that followed, there was a departure from focusing on the decisions and conduct of the employer, in favour of (in my opinion) a fruitless focus on the nuances, nature and intricacies of the employee’s response to their addiction. All of which is beyond the reasonable purview and responsibility of the employer, and unions and I would even say, leads to a never-ending loop for employment administrative tribunals.

This decision marks a first step back towards establishing the requirement to in the first instance prove discriminatory conduct on the part of the employer in order to establish a prima facie case for discrimination. Under this scheme (and what I hope to be a return to normalcy), it is only after the prima facie case is established that there is a potential for weighing of the nature of the addiction and the individual’s response to their addiction. After which, there is reliance on something that resembles a mitigation doctrine approach to evaluate the reasonableness and quantum of discipline. Ultimately, this reverts back to the employer’s decision and whether or not it was arbitrary or based on preconceived stereotypes. And at least this is something the employer has control over, and can thus be held to account.

If the grievor cannot prove discrimination played any part in the employer’s decision to terminate then the grievance fails. This is also consistent with the rationale in the recent Supreme Court of Canada Stewart v. Elk Coal Valley Coal Corp, so it appears as though there is a positive trend emerging for employers and for the general workability of employer A&D policy administration.

Extreme caution should be used and legal advice should be sought during the early stages of case managing files such as these files. On that note, this article was inspired by an article written on  October 19, 2017 by Michael MacLellan of CCPartners article published by Mondaq.com.