Canada: 'Quite frantic' Employers are scrambling to address the issue of marijuana in the workplace

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The apparent challenge with cannabis is that there isn’t a bright, measurable line between tipsiness and impairment the way there is for alcohol.

Many employers are unprepared for the reality of legal recreational marijuana, labour lawyers say, and are getting little guidance from Ottawa on how to address the issue of cannabis use during work hours.

“Most employers are not at all prepared for legalization,” Danny Kastner, principal and founder at Kastner Law and the past chair of the Ontario Bar Association’s labour and employment executive, said. “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.” 

A survey conducted in January by the Human Resources Professionals Association in conjunction with the Public Services Health & Safety Association and the Business of Cannabis, a cannabis sector platform, found that 71 per cent of the surveyed employers did not feel ready for marijuana legalization.

“This is not an accommodation issue anymore — (employers) are going to have to have to deal with it properly,” Scott Allinson, vice-president of public affairs for the HRPA, said.

The new Cannabis Act and its accompanying regulations are silent on marijuana and the workplace.

The only hint comes from Health Canada’s Cannabis Act Q&A site, where they note that “impairment in the workplace is not a new issue, and is not limited to cannabis,” signalling that employers could deal with cannabis impairment similarly to how they have dealt with other forms of impairment on the job.

But alcohol and marijuana have one major distinction: Marijuana is used medically, while alcohol is not.

The new Cannabis Act and its accompanying regulations are silent on marijuana and the workplace.

“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,” Kastner said.

Pot use is not a new issue for employers. Marijuana is the most commonly encountered substance on work place drug tests, even before legalization.

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Njeri Damali Sojourner-Campbell, an associate at labour and employment firm Hicks Morley Hamilton Stewart Storie LLP said that employers have already been dealing with medical marijuana, accommodation, and what to do when employees show up impaired.

The apparent challenge with cannabis as a legal substance is that there isn’t a bright, measurable line between tipsiness and impairment the way there is for alcohol, she said.

“(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?” she said.

Kastner notes that employers could develop a policy that distinguishes between prescribed marijuana and recreational use, with a recreational use policy that mimics existing alcohol policies. Right now, the law permits businesses to ban the use of alcohol or showing up under the influence of alcohol during work hours, and a similar policy could be applied to marijuana.

Where will we have to draw the line in the sand?

Danny Kastner, Kastner Law

Safety-sensitive workplaces, such as organizations where vehicles, large equipment and machinery are used, tend to ban all drug and alcohol use in certain positions, and will place those who must use intoxicating substances for medical reasons in non-safety sensitive roles.

But companies that aren’t safety-sensitive and don’t have zero-tolerance alcohol policies — those that allow employees to have a glass of wine at lunch, or when meeting with clients during or after work hours, may find themselves in a particularly tricky spot, having to judge the line between marijuana intoxication and a low level buzz.

“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,” Kastner said. He differentiates this from impairment, noting that it would be a problem in the work place, just like drinking to excess and coming back drunk.

Kastner said very few employers who don’t have safety-sensitive operations have drug and policies.

He said data that he’s seen suggests that fewer than five per cent of all work places have any kind of drug policy, with almost all being the truly safety-sensitive work places. Medical marijuana policies are similarly lacking — According to a 2017 HRPA survey, only 11 per cent of the 650 participating companies had a policy that addresses medical marijuana.

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

Danny Kastner, Kastner Law

Employers are particularly concerned with impairment. The HRPA’s Allinson said that many are questioning how they can detect impairment, how to find a tool that has the precision of a breathalyzer, and if they can do random testing.

Jen Chappel, a senior technical specialist with the Canadian Centre for Occupational Health and Safety notes that while there are blood, saliva and urine tests that can detect THC in your system, they cannot yet tell how impaired someone is. “Right now, you have to use observation and judgement of how someone is affected or impaired,” she said.

Kastner said that employer concern about testing for impairment may be an overreaction. “If you consider that there is no scientific test for impairment due to sleepiness, for example, but employers will regularly have their own methods to determine if someone is too tired to safely work, they will use their discretion,” he said.

And ultimately most employees will police their own usage. “Alcohol has been legal since prohibition, but it’s not as if employees show up drunk to work all the time,” Kastner said. “You’d expect that there would be a similar reaction with marijuana. That employees don’t generally want to be impaired at work, that they don’t generally want to create safety problems, or employment issues for themselves."

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