The federal government’s legalization of recreational cannabis use is due to take effect this year. More and more employers are turning their minds to the issue of how to ensure workplace safety.
Legal firm Roper Greyell has seen a definite increase in the volume of employers seeking advice on these issues. Employers need to understand their rights as well as their duties to accommodate employees with disabilities, including required or necessary treatments for those disabilities.
“The world of drug and alcohol policies is incredibly complex and, when not done properly, can result in significant problems,” says Roper Greyell partner Drew Demerse.
Review your drug and alcohol policies
Employers should be reviewing their drug and alcohol policies carefully to ensure that they inhibit the things they intend to while also being fair and reasonable, says Demerse. Employers should not be regulating the off-duty conduct of their employees, unless it has an impact on the workplace.
Particularly in a safety-sensitive workplace like construction, a diligent employer may consider testing as part of a comprehensive program to discourage workplace impairment and encourage workplace safety.
There is simply no substitute for good management, says Demerse. Employers should have supervisors talk with employees about their policy. They should also use eyewitness observations and proper training to help spot impairment in the workplace.
Policies that are overbearing or overreaching can also negatively affect workplace morale.
“It’s about striking that right balance between ensuring workplace safety, discouraging impairment in the workplace, and—in the same token—not overstepping and over-regulating people’s private lives.”
Employees with medical marijuana prescriptions
There is no such thing as "medical marijuana," says Demerse. A person can, however, be authorized to use cannabis products for medical purposes.
“If there is a concern that it may impact the job, employers have a right to request reasonable medical information from their employees to better understand the impact their usage will have on the workplace,” says Demerse.
In many cases, employers can ask the employee whether there are alternatives they have considered that wouldn’t have a negative affect on the workplace. Employers can ask the employee what they are using, how they are using it, how frequently they are using it, and what the dose is.
“Think of using marijuana for medical purposes in the same way as pharmaceutical medication,” says Demerse. “If you ask an employee what painkiller they’re taking, what the dosage is, and whether the doctor said it was okay to use in or around the workplace, they’d really be able to answer the question.”
Similarly, Demerse suggests employers ask the employee which strain has been prescribed, what the THC level is, the method in which it is being taken, the dose, and the times of day in which it is safe to take it.
Determining impairment in the workplace
In non-safety-sensitive workplaces, impairment becomes a productivity issue. Employers have the right to expect their employees to come to work unimpaired and fit to do the job accurately.
“Just because it’s legal doesn’t mean people have the right to use it any way they want,” says Demerse.
There are significant limitations in drug testing today, as testing does not prove current impairment. Despite Bill C45 going into effect this year, the concept of impairment has yet to be accurately defined, says Demerse.
“In my view, the federal government would be doing a service legislating this issue—to help employers large and small, and everything in-between—to understand what a reasonable limit for THC would be in a safety-sensitive workplace,” says Demerse. “So that all these employers, employees and unions aren’t left to navigate what is a pretty complicated issue on their own.”
