Calm Air bans employees in safety-sensitive positions from using cannabis 45 days before work
'We just don't have that black and white .08 that we have with alcohol': lawyer
Calm Air, a Winnipeg-based regional airline that carries passengers to northern communities in Manitoba and Nunavut, has banned all staff in safety-sensitive positions from consuming cannabis within 45 days of flying and warns if staff don't comply, they could be grounded.
The policy, which applies to flight attendants, pilots, dispatchers and some customer-service agents who work on ramps, comes on the heels of an outright ban on cannabis use by staff in safety-sensitive positions at Air Canada and WestJet, including outside of work.
"It is in keeping with the rest of the industry on the approach: safety first, and the safety of our crews and passengers is always first in any of our aviation," said David White, vice-president of aviation at Exchange Income Corporation, the parent company of Calm Air.
"I think what you're seeing is everybody's acting on an abundance of caution, waiting to see what developments we get and guidance from the government and regulators on this," White added.
He said the 45-day ban lands right in the middle of conflicting guidelines that say cannabis can remain in someone's system for 30-60 days after initial consumption.
The new rule is outlined in the company's drug and alcohol policy, which CBC News has obtained. The policy tells staffers the company reserves the right to randomly require employees to complete a drug or alcohol test when there are reasonable grounds to believe an employee may be under the influence.
It also warns employees could be fired for tampering with, missing or refusing a test.
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The Canadian Union of Public Employees represents Calm Air flight attendants and said it's monitoring how the policy will be applied.
"We informed the employer that we were reserving the right to grieve both the policy and individual implementation," said CUPE spokesperson Dale Edmunds in an email.
The ban on cannabis use could be hard for airline staffers to fight, said Mario Torres, a labour and employment lawyer at Brazeau Seller Law in Ottawa, a firm which is now specializing in cannabis law.
"It's going to be difficult to say that in a safety-sensitive position … you have a right to consume a substance that has impairing effects."
We have all sorts of things that are legal, but you don't do them at work.- Isha Khan, Manitoba Human Rights Commission
Torres predicts multiple cannabis cases will go to the Supreme Court over the next three to five years.
He believes the court will have to give guidelines on how employers can treat cannabis in the workplace for recreational or medical use, and thinks the court will make its decisions after new science comes out on the residual effects of the drug.
Torres said policies could be challenged once better science comes out that indicates just how long a person might be impaired after initial consumption.
"The issue here is that there's just a lack of scientific evidence as to how cannabis affects people, and it affects people differently, and we just don't have that black and white .08 [blood alcohol content] that we have with alcohol."
The Manitoba Human Rights Commission has been fielding many calls from employers and landlords wanting to know what rights they have for imposing restrictions on cannabis use, said Isha Khan, the commission's acting executive director.
She said lots of people want to know if they can show up to work after smoking pot — and the answer is, generally, "no."
"I think people are getting a little bit hyped up talking about it thinking, 'Oh my goodness, I have the right now because this is legal behaviour, I can do it at work.' We have all sorts of things that are legal, but you don't do them at work."
The commission has created guidelines for employers to help navigate the issue. Khan said the issue of recreational use is different than if an employer discriminated against an employee who uses cannabis for medical reasons, for example.
Employers who have introduced rules about cannabis use are, broadly speaking, within their rights to do so, "as long as they can justify why they're putting a time limit and as long as those expectations aren't going to … try to control moral behaviour," she said, not referring to any specific cases.
"We wouldn't want an employer to say, 'No, you can't drink,'" she said, but "they can focus on impairment."
However, Khan said she anticipates the commission will get human rights complaints on the matter moving forward.
Torres said the tension going forward is between an employer's obligation to create a safe and healthy workplace versus an employee's personal human rights.
"With this cannabis legalization, what you're seeing is that balance. It's that battle coming to the forefront."