Canadian workplace policies are ready for cannabis legalization

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With recreational cannabis becoming legal across Canada in just a week, companies are still scrambling to get their cannabis use policies in line to ensure safety in the workplace.

Though there is nationwide concern about how to handle the new legal market as it pertains to the workplace, labour lawyers suggest that most organizations will be able to handle the transition.

“We’re not dealing with anything new in the workplace,” said Jacqueline J Luksha, an associate at Toronto employment law firm Hicks Morley at a cannabis business event hosted Tuesday by the Globe and Mail. “Employers have an obligation to provide a safe work environment, there’s an obligation for employees to show up to work unimpaired, and those things haven’t changed.”

Most of the concern stems from safety-sensitive occupations including jobs in construction, truck driving and aviation. Westjet Airlines Ltd., for example, said that it plans to ban cannabis use for employees with safety-sensitive positions even when they are not at work. This policy specifically impacts flight and cabin crew members, flight dispatchers, aircraft maintenance engineers and station attendants. Air Canada previously adopted a similar policy on cannabis use.

Companies with employees in safety-sensitive positions, including aviation, may be inclined to administer drug tests to deter cannabis use. Experts say, however, that companies shouldn’t jump right to drug testing and that there is little evidence to suggest that drug testing actually reduces accidents in the workplace. They also don’t depict an accurate picture of when the substance was used.

“If you have a positive test, that could indicate recency of use. But it does not necessarily mean the person was impaired,” Dr. Carnide said. “Some people who would use cannabis more regularly… may have higher levels of [tetrahydricannabinol] but they’re not necessarily impaired. At the same time, you may have someone who may use it very infrequently… and they have lower THC levels, but are actually quite influenced and impaired by it,” she said.

For companies that do not deal specifically with safety-sensitive positions, a new policy that covers all types of impairment, may be enough. Cineplex Inc., for example, is updating its current policies for employee intoxication, rather than developing a new, cannabis-specific policy.

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“Impairment is really what you care about,” said Michael Paris, legal counsel at Cineplex Inc. “And you can’t be substance specific, you need to have a policy that’s adaptable to different substances.”

 “Part of the good side effect of cannabis being legalized, is we’re talking about impairment more generally in the workplace,” said Ms. Luksha, of Hicks Morley. “We’re maybe arming our managers and supervisors with more information in order to address those issues, in a way that actually gets to the safety concerns, as opposed to saying, ‘We’re going to manage the moral decisions of our employees.’”

Additional concern with legalization is the blurred lines between medical use and recreational use, but legal experts believe that employers have nothing to fear as it should be made clear when an employee requires cannabis for medical purposes with a proper prescription. Lorenzo Lisi, a partner at Toronto law firm Aird & Berlis LLP says that it should be clear to an employer if an employee has a medical prescription and the rules for reasonable accommodation for prescription drug use are well-established.

“Don’t come to the office impaired, disclose if you have an addiction, disclose if you’re using impairing medication. If you don’t do those things, potentially you’re going to have some issues in the workplace; we’ll accommodate everything up to the point of undue hardship,” said Lisi. 

 

 

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