Another awesome Q! Sounds like you’ve been quite busy this week. First thing you should do is thank God everybody’s alive and unhurt. Drug testing the driver should have been the very next step. If–and it’s a BIG if–you need to have a drug testing policy in place. If so, you need to ensure it allows u to test in these circumstances. Chances are, it does to the extent crane operator is a safety-sensitive position and the incident and discovery of marijuana constitute reasonable cause. The problem is that if you haven’t tested by now, it’s too late since the THC will have metabolized and any positive result won’t be proof of impairment at the time of the incident.
In either case, you need to do an investigation of the incident to determine its root cause. The pot is evidence of driver impairment and you must take photos clearly documenting the time and place it was discovered. Interview the operator and other witnesses. If the operator WAS doing drugs, BE CAREFUL to find out if he/she has an addiction or is just a casual user keeping in mind that an addiction/dependency is a disability under human rights law and you must make accommodations to the point of undue hardship. If he/she’s just a casual user, the gloves are off and you can treat the offence the way you would treat such an offence under your progressive discipline policy considering factors like previous offences, honesty in admitting, remorse, years of service, etc. Make sure your disciplinary action, if any, is consistent with how you’ve treated others who’ve committed similar offences. Scrupulously follow your disciplinary procedures and keep detailed records of all actions and decisions.
Finally, and perhaps most importantly, talk to a lawyer, especially if the operator is union and you’re contemplating termination. The stuff above is just general guidance. I’m neither qualified nor legally allowed to give you legal counsel the way a lawyer can.
Going forward, if u have any other urgent situations and want to reach me faster, email me at glennd@bongarde.com. And just to repeat, I am a lawyer but I can’t give u legal counsel. But I may be able to help u analyze the situation. Stay safe. Glenn
