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Cannabis legalization complicates employment policies

Businesses grapple with a wide range of human resources issues created by legal marijuana
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Canada’s provinces might not be ready for cannabis legalization, but the country’s human resources community has been preparing for it for at least two years in order to understand how they and their companies can best address the changes it will bring to the workplace.

Retailers and other non-safety--sensitive industries are in a different position than their counterparts in construction and heavy equipment operation, where employees are in safety-sensitive positions.

Retailers therefore have likely focused less on impairment concerns and will have to make policy changes once the legalization is in effect.

On the other hand, industrial employers with safety--sensitive positions already have strict rules surrounding all types of impairment, including alcohol, illicit drugs and prescription drugs.

“The policy is still very general,” said Doug Finnson, president of the Teamsters Canada Rail Conference. “Most companies and even governments are putting out new, updated policies essentially reiterating what we already know, that regardless of legality of marijuana you simply can’t be consuming while you’re on duty or subject to duty.”

One reason for the lack of employee policy change in these industries is because regulations outlining when you can drug-test employees haven’t changed and procedures like random drug testing are still prohibited.

However, that doesn’t mean they’re expecting an easy transition into legalization. Safety-sensitive industries are much less concerned with crafting impairment policy than they are with ensuring continued employee adherence to the policy.

The fear is that after cannabis is legalized, safety-sensitive employees will think that the HR impairment policy either no longer includes marijuana or is not valid if it does. But that’s not the case, even with prescription medical marijuana users.

“I took a trip around northern B.C. in the spring,” said Erin Brandt, a lawyer at Kent Employment Law, “and I talked to a lot of employers about legalization, and what I heard from the safety-sensitive sectors were that ‘We have these policies in place, we’re ready, but we’re nervous that our employees aren’t going to understand this shift and think it’s OK to come to work impaired [on marijuana] when it’s not.’”

That’s similar to Finnson’s experience. He said that most companies, including Canadian Pacific Railway Ltd. (TSX:CP) and Canadian National Railway (TSX:CNR), are trying to raise employee awareness that, despite cannabis legalization, you can’t show up to work impaired by cannabis any more than you could with alcohol.

Some safety-sensitive industries have adjusted their policies in light of cannabis legalization.

Brian Young, director of marine operations for Pacific Pilotage Authority Canada, didn’t have to draft an entirely new policy.

Instead the organization brought it back to the experts, who helped them augment the policy to more specifically highlight recreational, illicit and prescription drugs and ensure it covers all impairments.

While businesses in safety-sensitive sectors have had to focus only on amending existing policies, that doesn’t mean that the amendments haven’t been significant.

Both Air Canada (TSX:AC) and WestJet  (TSX:WJA) have announced that some employees will be restricted or banned from marijuana use, even during off-duty hours.

However, Brandt said that off-duty restrictions create some legal issues.

“Somebody’s going to challenge that,” said Brandt. “It has to be.”

Some off-hour limitations, however, are legally enforceable. Currently organizations like Canadian Pacific Railway and Pacific Pilotage Authority Canada already had enforceable employee policies that prohibited alcohol consumption within a specified period of time before the shift, typically between 10 and 12 hours.

Non-safety-sensitive sectors typically highlight only that employees can’t be impaired or consume drugs legal or otherwise while at work.

Some non-safety sectors aren’t all that concerned about legalization. Brandt said she’s spoken with employers in Vancouver’s marketing industry who say it’s common for employees to use cannabis to inspire their creativity.

When it comes to policy enforcement, employers are being faced problems similar to those faced by police departments.

As Young pointed out, unlike with alcohol, there is no reliable test to determine if someone is impaired by marijuana.

The drug can stay in a person’s system significantly longer than alcohol – anywhere from one to three months.

Not only that, but  the presence of cannabis in someone’s system does not have the same correlation to intoxication that blood-alcohol concentration does. This creates problems for businesses not only in enforcing the policy but also in its specific wording and prohibitions.

Pacific Pilotage Authority Canada took a different route than Air Canada and WestJet did. Instead of banning marijuana use outright, it decided to restrict cannabis consumption to within 24 hours of the start of a shift.

But if a policy permits alcohol consumption by an executive at a dinner meeting, what does that mean for cannabis policy and how enforceable will it be?

Young said consuming alcohol at meetings is usually frowned upon if the person is returning to work. But if it’s an evening dinner and a client offers it, it is typically permitted. When asked if the same rules would apply to cannabis, Young said that if the person is not returning to work within 24 hours ,what they do on their own time is up to them.

Ultimately, Brandt said that employers are being advised to develop a policy and apply it consistently.

Finnson expressed the same concern. He wants to ensure that supervisors are fairly and accurately enforcing the rules. To help with policy development and enforcement, Pacific Pilotage Authority Canada is sending a draft of its workplace drug and alcohol policy to employees and their union representatives to receive feedback and ensure that all parties agree and have input into how the policy will be enforced.