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“That’s the sort of thing that causes great concern to the industry.”

Buying marijuana for recreational use is expected to be legal in Canada by July 2018 after the Liberals introduced legislation on Thursday. It leaves the federal and provincial governments a little more than a year to resolve critical questions, including how cannabis will be distributed and how legalization will impact workplaces.

While labour ministers discuss the implications for workplace safety, a Calgary employment lawyer said Enform’s proposed ban, if imposed, could be challenged in the courts.

Photo by Ed Kaiser / 00072763A

John Batzel, a Bennett Jones lawyer, said while he believes employers should be allowed to ensure there is no misuse of cannabis in dangerous workplaces, he expects the courts would be asked to weigh in.

“There is reasonable likelihood that such a challenge would succeed based on the current case law,” Batzel said.

On-the-job drug testing is considered an invasion of privacy and potentially discriminatory in many Canadian workplaces, though the courts have given employers some leeway on job sites where safety — and sobriety — are critical, including the oilpatch.

Still, current drug testing technology cannot detect whether someone is impaired by marijuana. Unlike the breathalyzer test for alcohol, oral swabs and urine screens can only indicate whether someone has recently smoked or ingested pot, not whether they are high.

Until drug testing can detect intoxication with legal limits, Enform believes governments must allow employers to impose a zero-tolerance policy in workplaces where safety is paramount.