Despite the overall shift in society’s attitude towards the drug, cannabis remains an illegal substance under U.S. federal law and continues to pose challenges for commercial drivers crossing the international border.
Drivers subject to U.S. Department of Transportation regulations may be tested at random for a host of illegal substances including cannabis. And those who fail these tests are immediately taken off the road until they are able to satisfy certain requirements to be reinstated.
This situation continues to pose unique challenges for carriers in Canada, where recreational use of cannabis products is legal. What options do these employers have when managing employment relationships with longhaul international drivers who are unable to cross the border?
One answer that quickly jumps to mind is termination of employment. After all, if the driver is unable to do their job, that should be grounds for termination. Right?
For the most part, employees in Canada can be terminated at any time where there is just cause for doing so. Just cause typically exists where the employee’s behavior is fundamentally or directly inconsistent with the employee’s obligations to their employer.
How to determine just cause
What constitutes just cause can also be modified by statute. For instance, employment standards legislation in Ontario contains specific language in its definition of just cause that can catch employers by surprise. Determining whether just cause exits is a heavily fact-specific exercise and the bar for employers is often very high.
The matter is further complicated by the fact that the driver may have had their driving privileges revoked for doing something that is entirely legal where they live. It’s now been a little more than four years since the Canadian government legalized possession of cannabis. For those living south of the 49th parallel, cannabis possession is legal in 19 states (as well as Washington, D.C. and Guam). Five more states had cannabis initiatives on their ballots this past November. And in October 2022, President Joe Biden pardoned thousands of Americans convicted of cannabis possession under federal law and announced his intention to reconsider whether cannabis should remain classified with other hard drugs.
Further, the currently approved methods for detecting cannabis do not test for levels of present impairment. Rather, these methods only detect previous use of the drug. Drivers who may have indulged recreationally in a place where doing so is legal can still get caught up in the web of U.S. DOT testing many days or weeks later. Summary dismissal in these circumstances doesn’t seem fair.
Terminating employees without cause
Where there is no just cause, employees can be terminated without cause so long as the employee is provided reasonable notice of termination. This is akin to providing advanced notice that employment will be ending at a specific date in the future. When employers provide payment in lieu of reasonable notice, this is commonly considered a severance package. Determining what constitutes reasonable notice is often more of an art than a science and can result in protracted negotiation and costly litigation. Nonetheless, where there are weak or non-existent grounds for summary dismissal, or where an employer simply wishes to avoid the trouble of justifying cause, a without cause termination is often an attractive option.
Employers should be wary that some types of legislation can limit the ability to terminate without cause. Employment standards legislation across the country contains various sorts of job-protected leaves such as parental leave or long-term illness leave. Occupational health and safety legislation can also create circumstances where, even without cause, termination is not permissible.
Drug addiction and disability
Human rights considerations also exist. In Canada, employers may not terminate the employment of an employee related to any of a host of protected grounds. These prohibited grounds of termination include mental and physical disabilities. An employee who suffers from a drug addiction is considered to have a mental disability. Immediate dismissal, even without cause, will not be possible, so employers are obligated to accommodate employees suffering from an addiction to the point of undue hardship. What constitutes undue hardship will vary and depend on the particular circumstances of the employer and the employee.
Another piece of legislation that alters the without cause termination framework is the Canada Labour Code. Canadian drivers that cross provincial or international boundaries are governed by the federal jurisdiction and not provincial employment standards. The Supreme Court of Canada has held that the provisions of the Canada Labour Code protect non-unionized federally regulated employees from being dismissed without cause. Terminating employment even with a generous severance package would violate this legislation. In addition to awarding monetary damages, adjudicators also have the power to reinstate workers who have been unjustly dismissed.
Ensure drivers understand obligations
Because of these limitations and restrictions, managing the employment relationship when a driver cannot cross the international border can be challenging. Employers can mitigate some of these issues in advance by ensuring that drivers clearly understand their obligation to refrain from using cannabis and ensure they are able to pass a drug test when required. Drivers must be made aware that even legal behaviour, such as recreational use of cannabis on their personal time, can have dire consequences on their employment. This can be accomplished through regular training and clear language in employee policies. These policies should also address accommodation and require employees to come forward if they are struggling with addiction prior to a positive drug test.
Maintaining compliance with U.S. DOT testing should also be clearly stated as a condition within the written employment contract. One might argue that this condition is present even if there is no written contract of employment. However, spelling out the condition in black and white removes all doubt and also serves to reinforce its importance. If the condition is in writing and an employee fails a drug test, the employer would have a stronger case that the breach of this clear condition of employment justifies summary dismissal.
Short of termination, employers may also consider whether the driver could be reassigned to routes or tasks that are not subject to U.S. DOT regulation. In this manner, the employer can avoid the termination dilemma and the driver can continue to provide useful service while working to restore their full driving privileges.
Unless and until testing methods evolve to the point where decisions can be made based on current levels of impairment rather than past use, these issues will continue to exist. Managing the employment relationship with drivers who have failed U.S. DOT testing will remain a challenge.
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