Air Transat cabin crew can’t get high while they’re working, or on their own time, arbitrator says

An Air Transat sign is seen Tuesday, May 31, 2016 in Montreal. THE CANADIAN PRESS/Paul Chiasson

Air Transat cabin crew members are not allowed to get high from cannabis, whether they’re on or off the clock, according to a new labour ruling.

Arbitrator Nathalie Massicotte upheld the airline’s policy that prohibits employees in “high-risk” positions — like pilots, first officers and flight attendants, from using cannabis — on their own time and at work.

Air Transat had implemented the policy following the legalization of cannabis in Canada in 2018, and it was challenged by the Canadian Union of Public Employees (CUPE) local.

The airline had implemented this policy citing safety concerns. The union had argued that it was a violation of the employees’ right to privacy.

However, according to the ruling, the airline’s policy was found not to be a violation of the rights of the employees, and that Air Transat’s policy was “reasonable” in the circumstances.

The ruling highlights that cabin crew members play a “crucial role” in safety and have a lot of responsibility while on duty, and a person who is not high could still be under the residual effects of cannabis, supporting the airline’s caution.

According to evidence in the ruling, the current understanding of the effects of cannabis, including the impacts of its residual effects, is limited.

“Thus, I am of the opinion that the safety of passengers on an aircraft must take precedence over the right to privacy in this case, and more specifically, the possibility for flight attendants to consume cannabis when they are not on duty,” the ruling said.

“The employer has demonstrated that the cannabis consumption provision is reasonably necessary to achieve a legitimate objective, namely safety in the hazardous environment of aviation, that it is proportionate to that objective, and that it represents a minimal infringement on the flight attendant’s right to privacy.”

‘Employer’s policy remains unreasonable’

Marie-Hélène Nadeau, the union’s president, wrote in an email to CTVNews.ca that she is unable to comment on the decision, as a full analysis is still underway.

“That said, we maintain that the employer’s policy remains unreasonable and excessively intrusive with respect to our members’ privacy. It could lead to disciplinary action against flight attendants who have consumed cannabis several days or even weeks before a workday,” the email says.

“We also take note of the employer’s argument that the duties performed by flight attendants are highly safety-sensitive and require extreme discipline outside working hours. Given this position, the employer will have to compensate our members accordingly.”

Alcohol versus cannabis

Alcohol is prohibited 12 hours before an employee is on duty, and it was asked, as per the ruling, why a similar policy could not be imposed with cannabis.

But according to the evidence provided, residual effects of alcohol can persist for up to eight hours, citing that no study on alcohol demonstrates residual effects in the blood 11 hours after consumption.

Therefore, the airline’s policy on no alcohol 12 hours before an employee is on duty is aligned with studies, the ruling said.

“On the contrary, studies show that cannabis is not eliminated from the body in the same way,” the ruling said.

The ruling also mentioned that the intensity and duration of the effects of cannabis can also vary among the type of consumers — casual or chronic — as well as age and sex. It also noted that the concentration of tetrahydrocannabinol (THC) varies among products.

As a result, a company like Air Transat must exercise caution, the ruling said.