Ruminations

Cannabis Legalization Employment Headaches

"Most employers are not at all prepared for legalization. They're getting quite frantic about it -- about what types of policies to put in place, and about what types of policies would be lawful."
"My view, and I think the view of most employment lawyers, is that it wouldn't be sufficient to simply apply your alcohol policies to marijuana use for at least one reason -- a growing number of employees use marijuana as a legal medication."
"Just as in a workplace where there is no zero-tolerance alcohol policy, unless there is a zero-tolerance marijuana policy, there is absolutely nothing that would prevent an employee from having a toke and coming back to work."
"Alcohol has been legal since prohibition, but it's not as if employees show up drunk to work all the time. You'd expect that there would be a similar reaction with marijuana."
"That employees don't generally want to be impaired at work, they don't generally want to create safety problems, or employment issues for themselves."
Danny Kastner, principal, founder, Kastner Law, past chair Ontario Bar Association labour and employment executive

"This is not an accommodation issue anymore [employers] are going to have to deal with it properly."
Scott Allinson, vice-president, public affairs, Human Resources Professionals Association

Some employer groups are asking Ottawa not to legalize recreational marijuana until workplace safety issues are resolved. (CBC)

"We're caught in a potential Catch 22: how do you protect the worker and those around them as well as deal with legalized marijuana?"
"It is a pressing concern for the industry because of the … potential catastrophic impacts of somebody doing a critical safety job when they're impaired."
Cameron MacGillivray, president of Enform, Calgary-based oil-and-gas safety group

One of many campaign promises that led to Prime Minister Justin Trudeau's ballot-box victory in 2015 over the-then Conservative-led government was the implementation of legalized recreational marijuana. Medical marijuana by prescription is legal, while recreational use of cannabis is not, but it will be by around July first of 2018. Companies involved in production and services relying heavily on safety in the workplace have lobbied the federal government ahead of legalization to declare the use of cannabis prohibited in safety-sensitive workplaces.

As far as this government is concerned, it will have completed its electoral promise when cannabis is legalized, and the problems inherent in use of a product that has the potential of impacting on users' actions and reactions and mental state is not their problem. This is a 'gift' the federal government has given voters who consider it as such, and a burden it has laid upon provincial governments, municipalities, police, the medical community and employers. In other words, here is a problem but it's not ours; you look after it.

Internal federal government documents point to federal officials disinclined to any particular measures relating to workplace marijuana use; the employer will have to figure it out on their own and establish best-practices reactions. Labour lawyers are rolling up their sleeves, recognizing the issue for the challenge it represents and will, without doubt, work in tandem with employers on addressing cannabis use during working hours.

According to the 2017 Canadian Cannabis Survey, 21.5 per cent of the nearly 10,000 respondents admitted to using marijuana to get high before or during work last year, and 7.7 per cent said they do so weekly — and even daily. (AP FILE PHOTO)

"It’s a concern that’s been growing, and we know we are not alone in that growing concern. The Toronto Transit Commission is not taking any view on the legalization of marijuana. Our interest and our focus is on safety in the workplace. The steps we’ve taken really pre-date the discussion around legalization."
"Random testing is not about, ‘ah ha, I got you’. Random testing is a mechanism to further enhance safety and to deter unsafe behaviour."
"You need sophisticated occupational health programs."
Megan MacRae, executive director of human resources, TTC

"[There’s also no such thing as] over-communicating [to both workers and managers to promote safety in the workplace]."
"[Boeing has an ongoing campaign that pushes the concept] be smart, be sober, be safe [and to let everyone know there is an Employee Assistance Plan there to help, aside from a 'zero-tolerance' policy]."
"We work with the managers to focus on impairment indicators in the workplace: the bloodshot eyes, the odour of marijuana and slurred speech."
"We have also ramped up our employee training materials to talk to them about: ‘Do you want to be working next to co-worker who has impaired judgment or slow reaction times?’ — which are really critical from a safety standpoint."
Julie Daugherty, certified substance abuse program administrator, Boeing Canada

The Human Resources Professionals Association along with the Public Services Health & Safety Association and the Business of Cannabis (cannabis sector platform) group conducted a survey in January that found 71 percent of employers surveyed felt uneasy about marijuana legalization -- stemming from the simple fact that they are unprepared, and have no idea how to go about feeling prepared to handle this hot-potato issue.

The new Cannabis Act, Bill C-45 along with the regulations accompanying it, make no mention of marijuana and the workplace. Health Canada's Cannabis Act Q&A notes "impairment in the workplace is not a new issue, and is not limited to cannabis", implying employers might take steps to handle cannabis impairment in a manner similar to how they deal with other on-the-job types of impairment issues.

The most commonly encountered substance on workplace drug tests long before legalization, the issue itself is not new. The legalization of a product that has the potential of complicating the workplace is, however. "[Employers] want to know, what can we tell them to do, tell them not to do, and what investigative steps can we take? Where will we have to draw the line in the sand?", explained an associate at labour and employment firm Hicks Morley Hamilton Stewart Storie LLP.

At present, businesses are permitted by law to ban the use of alcohol and reacting when employees appear under the influence of alcohol during work hours; similar reactions could be viewed as suitable applied to cannabis. Workplaces where vehicles, large equipment and machinery are in use mostly ban all drug and alcohol use in particular positions, placing employees who must 'medically' use intoxicating substances out of bounds of those positions.

Those, on the other hand that don't fall into the category of safety-sensitive and which haven't established zero-tolerance policies may wish to reconsider their policies. According to a Human Resources Professionals Association survey of 2017, 11 percent of the 650 participating companies held a policy addressing medical marijuana. It is the issue of impairment that concerns employers, questioning how they can detect impairment, what kind of mechanism has the precision of a breathalyzer, and if random testing is feasible.