4.20 at Work?

It’s still hazy

4.20 at Work?

While the legalization of cannabis in 2018 may have sparked significant concerns about workplace impairment, health and safety laws have long provided that not all impairments, in all workplaces, warrant the same response.

For close to 80 years, B.C. health and safety laws have held the view that not all impairments at work are prohibited. Back to the first restriction on workplace impairment, found in the 1945 Accident Prevention Regulations, the prohibition on “intoxicating liquor” and other “ailments” only applied where the impairment was such that it might endanger the worker or other workers. In 1966, that restriction was clarified to apply to “drugs” as opposed to just “ailments,” and in 1972 it was further revised to emphasize that the prohibition applied to impairments that affected health and safety.

Fifty-two years later, the law remains largely the same. Today, under the aptly numbered section 4.20 of the Occupational Health and Safety Regulation, both workers and employers face restrictions for allowing workers to be at work where their “ability to work is affected by alcohol, a drug or other substance.” However, as can be traced back to 1945, it is only impairments that “endanger the person or anyone else” that are restricted. Being high at work is not, alone, a violation.

This places employers, and WorkSafeBC, in the position of having to assess whether an impairment poses a safety risk before determining if section 4.20 is engaged. Perhaps because of this limitation, section 4.20 is rarely used, even post-legalization. Since 2018, WorkSafeBC has only identified 12 violations under section 4.20. To put that in context, WorkSafeBC found 4,400 violations of fall protection requirements in that same period.

This limited use of section 4.20 does not mean that employers must assess every impairment and its effects before removing a worker. Cases applying section 4.20 support that the safety sensitive nature of certain workplaces mean a stricter view may be reasonable. As noted by WorkSafeBC’s review division in Decision #R0053246, in upholding an order under section 4.20 for a worker who smoked marijuana while operating heavy equipment:

“Some workplaces have few hazards that could endanger a person affected by drugs or alcohol. Others... have inherently dangerous features which require extremely clear cognitive and reasoning skills to remain safe. In the latter cases, any impairment... could lead to an unacceptable increase in the risk of injury or death.”

Further, section 4.20 is a minimum standard. Employers can take stricter views, including by adopting zero
tolerance policies. This point was made in French v. Selkin Logging, 2015 BCHRT 101, where the Tribunal accepted the reasonableness of an employer’s zero tolerance policy to workplace impairment. In dismissing a complaint of discrimination from a worker who was terminated for smoking marijuana while operating heavy equipment, the Tribunal explained:

“Regulation 4.20... is effectively a minimum standard. Clearly, zero tolerance is intended to create a margin of safety so that the minimum standard is not crossed. Bearing in mind the present industrial context, I find no wrong in setting a higher safety standard...”

However, employers in enforcing such policies must be mindful of the need to accommodate workers on the basis of disability. This could include substance dependencies or the use of marijuana to treat a physical disability. This was the case both before and after legalization.

So, while 2018 may have marked a significant change in the legal status of marijuana, it did not drastically change the balancing act for employers. Employers wishing to rely on section 4.20 alone to remove a worker must show that the nature of the impairment poses a safety risk. Employers wishing to take a stricter view would be wise to adopt policies on workplace impairment. Without such policies, whether section 4.20 is enough will often be hazy.

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