Yes, they can fire her.
A woman in Canada brought her travel bag to work, planning to head to the cottage directly from the office. Among her belongings was a small bag of marijuana. Unbeknownst to her, a co-worker must have smelled it because within minutes she was called in to speak to human resources.
The HR rep asked her if she had any marijuana with her that day. She admitted that she did. Thinking that since recreational cannabis use is now legal across Canada (as it is in 11 U.S. states including California), this wouldn’t be an issue. The HR rep, however, told her she was in violation of the workplace health and safety policy and was being fired for just cause.
She had never been high at work. And had never been disciplined for anything in her 7 years of employment with the company.
So she wrote to the Globe and Mail who published her letter and the opinion of 2 lawyers. They said her employer had the right to fire her provided the company had a clear drug policy that was communicated to all employee’s, and that the firing was reasonable given her individual circumstances: that she was a 7-year employee with no prior violations who made an honest mistake suggested this firing may not have been reasonable thus affording her a legal remedy. But the rules, the lawyers said, are very much in flux and, I would suggest, often unfair.
Suppose, for example, this woman lived in the U.S., sued her employer, and the case went all the way to the Supreme Court with William Rehnquist presiding as Chief Justice (as he did for 19 years ending in 2005). And suppose her lawyer argued that, given the legalization of cannabis for recreational use, that the case should be treated no different than if she had an unopened bottle of wine or beer in her bag. Well, according to Jeffrey Toobin’s book, The Nine: Inside the Secret World of the Supreme Court, this may have given Rehnquist some pause since he “had a single beer … at lunch every day.”