‘Arbitrators do not like harsh consequences that don't fit what the misconduct was’: employment lawyer warns Canadian employers against zero tolerance drug policies
A recent Ontario arbitration decision involving Metrolinx has put employers across Canada on notice about the legal risks of applying zero tolerance drug policies – even in safety-sensitive workplaces.
The ruling highlights the importance of balancing workplace safety obligations with the legal duty to accommodate workers with disabilities – particularly when those workers are authorized to use medical cannabis.
The case saw two employees with safety-sensitive jobs (bus drivers) removed from their roles after disclosing they used medically prescribed cannabis to manage serious health conditions.
“The decision really emphasizes why it’s so important not to ever have zero tolerance policies,” says Sheryl Johnson, partner at Sullivan Mahoney LLP in Niagara Falls.
“At the end of the day, you have to take every person individually under the code, in order to ensure that an employer meets their obligation to accommodate.”
One of the grievors had Crohn’s disease and used medical cannabis to manage pain, anxiety, and sleep disturbances.
Although his use followed medical guidance and was not linked to any impairment at work, Metrolinx subjected him to drug testing and later refused to reinstate him unless he signed a “last chance” MOA agreement.
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