This was adopted by the Executive Board due to recent events including the legalization of recreational cannabis on October 17, 2018 for Canadians aged 19 and older.
This policy will be updated as the law evolves around the issue. Visit this page often to keep yourself up-to-date.
Local 793 Policy on the Use of Cannabis and other impairing substances by its Members
Members of the International Union of Operating Engineers, Local 793 operate in an industry that is inherently dangerous and safety sensitive. Ensuring the health and safety of the workplace is a joint obligation shared by our signatory employers, the Union and our Members.
All Members are obligated to report for work “fit for duty”. Working while impaired, including impairment arising from the use/consumption of drugs, including cannabis and/or alcohol, can lead to serious consequences, including bodily injury, property damage and, potentially, death.
Dependency on drugs and/or alcohol is considered a disability under Ontario’s Human Rights Code. Local 793 recognizes that Members may suffer from dependency issues and encourages any Member who believes they are suffering from a dependency to seek appropriate professional assistance. The Union will assist any Member who comes forward with a dependency issue to receive the appropriate rehabilitation, including through the De Novo Employee Assistance Program, to enable them to continue in their career while ensuring they remain fit for duty.
2. Purpose & Objectives
Almost all Employers have their own company policies in respect of the use of cannabis and other impairing substances by their employees. Some of these policies vary widely.
The purpose of this Policy is to clearly communicate to Members the Union’s position on the use of Drugs and Alcohol, and particularly cannabis, as it relates to the workplace, and the circumstances in which it may be appropriate for Members to submit to requests by their employer to test for drugs and/or alcohol.
The objective of the Policy is to ensure that safeguards are in place to promote a safe and healthy work environment for our Members and our signatory contractors and to minimize the risk of impaired performance and injuries or accidents as a result of Drug and/or Alcohol use.
Nothing in this Policy overrides the Employer’s superseding obligation under the Occupational Health and Safety Act to provide a safe work environment, or a Member’s obligation to comply with the Occupational Health and Safety Act,and, where appropriate, the policy of their particular employer.
This Policy applies to all Members of the International Union of Operating Engineers, Local 793.
“Alcohol” means a drug such as beer, wine, spirits or any other intoxicating ethanol.
“Cannabis”means the psychoactive dried flower buds, leaves, preparations (such as hashish), or chemicals (such as THC), in whatever form (including edibles) that are derived from the cannabis plant.
“Disability”means disability as defined under the Ontario Human Rights Code and includes past, present and perceived conditions.
“Drug(s)” means any substance which when ingested can impair safe and productive physical or mental performance, and includes, but is not limited to, cannabis, prescription medications, whether or not acquired with a legally obtained prescription, illicit drugs (i.e. any drug or substance that is not legally obtainable in Canada), solvents or inhalants that may inhibit an employee’s ability to perform his or her assigned duties in a safe and productive manner.
“Member” refers to a member of the International Union of Operating Engineers, Local 793.
“Employer”refers to the party who is currently employing a Member of Local 793 and with whom Local 793 has bargaining rights.
“Workplace” includes, but is not limited to, all land, facilities and property owned, leased, or directly controlled by the Employer as well as all land, facilities, and property owned, leased, or controlled by a person or entity with which an Employer has entered into a contract for services or work (i.e. an Employer’s customer or client). Without limiting the foregoing, this includes all mobile equipment and vehicles owned, leased or under the control of the Employer, or its customers or clients.
“Fit for Duty” in the context of this Policy means being able to perform assigned duties unimpaired in any way by Cannabis, Drugs, or Alcohol, or their after-effects.
“Impairment” means both physical and psychological alterations brought about by the consumption of Cannabis, Drugs and/or Alcohol which inhibits a Member’s ability to perform his or her assigned duties in a safe and productive manner.
“Pre-Access” means before being permitted to perform safety-sensitive work or access the work site at which safety-sensitive work is performed.
“Pre-Employment”means before commencing work for a signatory employer.
“Reasonable Cause” means directly observed aberrant or unusual on-duty behavior of a Member that creates a reasonable apprehension that the employee is not fit for duty. Direct observations which may lead to the reasonable apprehension may include but are not limited to: direct observation of drug (including cannabis) or alcohol use while on duty or within 24 hours of reporting for duty, physical and/or behavioural indicators of Alcohol or other Drug-induced impairment including slurred speech, bloodshot eyes, dilated pupils, loss of balance and motor skills, heavy and unexplained perspiration, the odour of Alcohol or other Drugs on the employee’s person, the presence of Alcohol or other Drugs or related paraphernalia near the employee in such a way as to suggest recent consumption by them, a statement by the employee which likely suggests impairment, an unacceptable attendance record in circumstances which suggest that the Member may have a medical condition related to Alcohol or other Drug abuse.
“Safety Sensitive Positions”means those positions where the duties or responsibilities of the position, if performed poorly, could have a direct negative impact on the health or safety of employees or others, including the individual occupying the said position, contractors, customers, the public or the environment or could lead to damage of property or Employer Premises. Persons holding Safety Sensitive Positions include employees who are required to rotate through Safety Sensitive Positions or who temporarily relieve employees in Safety Sensitive Positions. Supervisors or team leaders and senior managers who directly supervise employees occupying Safety Sensitive Positions, or who perform the same duties or exercise the same responsibilities, are deemed to hold Safety Sensitive Positions.
“Union” means IUOE, Local 793
5. MEMBER RESPONSIBILITIES
Local 793 expects its Members to comply with this Policy and the standards and principles outlined herein. Local 793 takes its role in dispatching employees to work seriously, and has a responsibility to protect all its Members by avoiding placing impaired individuals into work situations.
Failure of Members to adhere to this policy may result in the Union laying charges under the IUOE Constitution and By-Laws and could, depending on the circumstances, result in a Member being determined to be unfit for dispatch until such time as the Union can be satisfied that the Member is acting in compliance with this Policy.
Placing fellow Members in danger by non-compliance with this Policy could also lead to charges pursuant to the Constitution and By-Laws.
Member responsibilities under this Policy are as follows:
A. Members are expected to report to work fit for duty.This includes remaining fit for duty and in compliance with this Policy while on call (capable of being called into work on short notice). See definition of ‘fit for duty’ under Item #4 of this Policy.
B. Members are expected to conduct themselves in a professional manner and make responsible choices in respect of the use of Cannabis for either medical or recreational usage.
C. Members must not consume any Drugs that have the ability to impair, including Cannabis and/or alcohol, during their workday or shift.
D. Members must not consume any Drugs that have the ability to impair, including Cannabis and/or Alcohol, during any training related to their employment.This includes training provided for and by the Union.
E. Members who are considered commercial drivers are subject to MTO guidelines on impairment.This means there is zero tolerance for impairment on common or public roads. Zero tolerance means drivers of commercial vehicles must have a blood alcohol concentration of zero when driving a commercial vehicle and cannot have the presence of drugs in their body, as detected by a federally approved oral fluid screening device. A commercial vehicle is defined as a vehicle that requires the driver to hold a Class A, B, C, D, E or F driver’s licence; a road-building machine as defined in Regulation 398/16 (including cranes and heavy equipment); a vehicle that requires a Commercial Vehicle Operator’s Registration (CVOR).
F. Members who are regularly expected to be “on call” are advised to refrain from using any drugs that have the ability to impair, including Cannabis and/or alcohol for any period of time they may be reasonably expected to remain on call.
G. Members must not use, possess, distribute, cultivate, offer or sell Drugs and/or Alcohol and/or illicit drugs and/or Alcohol and/or any related paraphernalia during the course of their workday or shift.
H. Members should perform their jobs in a safe and lawful manner and in accordance with the provisions of this Policy, the Collective Agreement, and any and all other policies, procedures, or relevant legislation applicable to Members.
I. Members are expected to responsibly use prescribed and over-the-counter medications. Where the use of a prescribed or over-the-counter medication could inhibit a Member’s ability to carry out the duties of his or her position safely, it is a Member’s responsibility to immediately refrain from operating. The Union will assist Members in circumstances where an employer accommodation is required, once notified.
J. Members are strictly prohibited from using, possessing, distributing, cultivating, offering or selling Cannabis, other Drugs and/or Alcohol and/or illicit drugs and/or Alcohol and/or any related paraphernalia on Union property, whether in Ontario or Nunavut.More specifically, this includes the Union’s head office in Oakville, Ontario, our training facility in Morrisburg, Ontario and all local area offices located throughout the Provinces of Ontario and Nunavut.
6. Union Responsibilities
A. The Union is responsible for bringing this Policy and its requirements to the attention of all Members and for administering this Policy consistently, reasonably and fairly with due regard for the legal rights of Members under the collective agreement and at law.
B. The Union will update this Policy where necessary to respond to developments in the law. Any changes to this Policy will be immediately communicated to Members.
C. The Union is required to ensure the confidentiality and privacy of all of its Members.
7. Circumstances where Drug and Alcohol testing may be required by your employers, and Local 793s position on such requirements
Members who occupy Safety Sensitive Positions may be subject to requests to undergo Drug and/or Alcohol testing by their Employer in a range of circumstances. The Union’s general position on when Drug and/or Alcohol testing may be lawfully required by an Employer is consistent with the current status of the law in Ontario on when it is appropriate to request a person submit to Drug and/or Alcohol testing. These circumstances are as follows:
a) Where there is reasonable cause to suspect a Member has reported to work impaired and is not fit for duty.
b) Where an accident or near miss has occurred related to employment that results from the employee’s negligence and results (or in the case of a near miss, could have resulted) in property or vehicular damage OR an accident related to employment results in a significant injury which requires offsite medical treatment AND where it appears there is a reasonable possibility that Drugs or Alcohol were a contributing factor to the accident or near miss.
c) As part of a return-to-work program or other terms and conditions negotiated between the Union and Employer (such as a last chance agreement) as a result of a Member having been found to be impaired by Drugs and/or Alcohol at work or who suffers from a Drug and/or Alcohol disability which may cause them to not be fit for duty.This may also include random Alcohol and/or Drug testing where an employee suffers from a Drug and/or Alcohol related disability. This will be evaluated on a case-by-case basis.
8. Ban on Random Testing
In accordance with the current state of the law in Ontario, the Union does not currently endorse or condone random testing for Alcohol or other Drugs except as identified in subsection 7(c) above.
9. Pre-Employment and Pre-Access Testing
The law in Ontario with respect to pre-employment and pre-access testing is currently unsettled. The question of whether or not it is appropriate and lawful to test is a question of fact in each specific circumstance. The Union will therefore only endorse pre-employment or pre-access testing under specific circumstances.
Factors that affect the lawfulness of pre-employment testing include but are not limited to: the purpose of the requirement to test (specific to each Employer), the necessity of the requirement to test having regard to all surrounding factors, and the Employer’s protocol for dealing with non-negative pre-employment tests, including discipline.
Employers remain responsible for ensuring full compliance with human rights protections where they are contractually required to adhere to the drug and alcohol testing requirements imposed by their customers or by site owners.
10. Pre-Requisites for “Reasonable Cause” Testing
It is an employer’s responsibility to determine whether or not reasonable cause exists to conduct testing. It is the Union’s position that only designated and qualified management personnel shall make a determination that reasonable cause exists to justify testing. The Union’s position is that the designated and qualified management person(s) must document their own observations and observations of others that are relevant to assessing reasonable cause.
It is the Union’s position that a finding that reasonable cause exists to conduct testing requires the Member to exhibit signs, symptoms and/or behaviors that cannot reasonably be explained as resulting from other causes, such as fatigue, lack of sleep, side effect of prescription or over-the-counter medications, illness, injury, reaction to inhalation of dust, noxious substances, or smoke.
Best practices for employers dictate that they will provide to each Member and to the Union a copy of the document outlining the observations and conclusions of the designated and qualified management person before he/she is required to be tested.
11. Pre-Requisites for Post-Accident or Near Miss Testing
It is the Union’s position that an accident or near miss, in and of themselves, does not constitute reasonable cause to test a Member. No test should be required if it reasonably appears that the accident is attributable to another individual or individuals, or cause(s) unrelated to actions of the Member. No test should be required where it can be determined with reasonable probability that Drugs or Alcohol were not a contributing factor to the accident.
12. Protocols Applicable to both Drug and Alcohol Testing
The Union supports the least invasive forms of testing that also yield the most accurate results and can detect, to the greatest extent possible, a nexus to current impairment, as opposed to simply detecting past consumption. The most accurate tests for Cannabis impairment currently available are saliva tests. Saliva testing, while better, can still only detect usage within a 12-24-hour period. Urine tests continue to be the most prevalent method of testing in Ontario.
The Union supports testing in labs that employ stringent administrative controls to ensure accuracy, reliability and Member privacy and confidentiality. Administrative controls may vary from lab to lab, but will be considered acceptable by the Union so long as they are in accordance with SAMHSA requirements and are substantially similar to the typical administrative controls for both Drug and Alcohol testing.
13. Procedure upon Receipt of the Results
a) If a test is positive
Should a Member test positive for Drugs and/or Alcohol, they should expect that their employer will likely remove them from the worksite immediately. Employers may issue discipline up to and including termination.
The Union will take all available steps to ensure Members obtain a copy of all data relating to the test procedures and results provided.
The Union will retain its right to grieve any action ultimately taken by the Employer, if such action is not for just cause or in accordance with Employer’s obligations under the Ontario Human Rights Code, or other laws.
b) If the test is not positive
Members who do not test positive should expect to return to their employment without any loss of time, money or seniority. The failure of your employer to immediately return you to work may be cause for a grievance.
The Union will retain its right to grieve any action taken by the Employer if not for just cause or in accordance with Employer’s obligations under the Ontario Human Rights Code or other laws.