With the imminent legalization of marijuana in Canada, what are the issues and concerns that employers will be faced with and what can they do to prepare themselves? As companies begin to review their HR policies and hiring/firing practices, they must also take into consideration the legalities surrounding drug testing and medical marijuana usage. How does this compare to alcohol and prescription medication in the workplace?
According to Alison McMahon, founder and CEO of Cannabis at Work, the main focus of employers is on safety and productivity. Her organization is the leading source in Canada for cannabis jobs, recruitment services, online industry training and workplace impairment training.
On the safety side, McMahon says there are concerns that cannabis legalization will lead to more occurrences of individuals being impaired in the workplace. “When it’s legal, people may assume there will be more flexibility around use in the workplace,” which McMahon says is not the case. “And in non-safety sensitivity workplaces, it comes down to concerns around productivity and performance and simply being impaired in the workplace.”
Field Law labour and employment lawyer Christin Elawny agrees with McMahon that the number one concern is safety. “Employers are required to provide a safe workplace and any employee who is impaired by drugs or alcohol is a potential threat to safety. Employers need to review and update their drug and alcohol policies to promote a fit-for-work culture and that will look different in different workplaces. In most cases, this will include educating employees on safety practices and the company’s drug and alcohol policies, and training managers and supervisors to recognize impairment.”
One of the challenges of legalizing cannabis is that it can be used medically and recreationally. As a result, says McMahon, two slightly different sets of rules will need to be applied.
For example, if an employee has medical authorization to use cannabis, “it can trigger an employer’s duty to accommodate that individual – and duty to accommodate is to the point of undue hardship. So, for that reason, employers cannot really have a zero-tolerance policy towards medical cannabis, because that would offend human rights.”
When it comes to recreational cannabis, McMahon says employers can be more restrictive, much like the workplace drug and alcohol policies already in place at most organizations.
On the topic of drug testing, Elawny says it raises a number of issues for employers. “Unlike testing for alcohol, the current technology for cannabis testing cannot definitively prove impairment. Currently, if an employee tests positive for cannabis, they’re testing positive for an illegal drug and disciplinary action is warranted. But once cannabis is legalized, the employee will no longer be testing positive for an illegal substance. This makes disciplinary action more difficult, especially if the employee may have ingested the cannabis full days before testing, and may not actually be impaired at work.”
HR professional Eleanor Culver says, “For positions that are categorized safety sensitive with a bona fide occupational requirement (BFOR), drug testing for cannabis will not be an issue. It is already included in even the most basic of pre-employment and post-incident drug-testing panels.” What will become more interesting, she says, is the ability to conduct pre-employment drug testing for non-safety sensitive positions, something Culver does not personally recommend as a practice.
Legal advice, says Jan Chappel, senior technical specialist for the Canadian Centre for Occupational Health and Safety, is highly recommended for any employer who is considering implementing substance testing. “Canadian Human Rights Commission (2017) states: ‘In deciding whether and how to conduct drug or alcohol testing in the workplace, an employer must consider a variety of factors including human rights law, safety, privacy, labour standards, the provisions of any applicable collective agreements, regulatory requirements, the level of supervision available in the workplace, among other considerations.”
In order to mitigate concerns, says Elawny, “Employers will want to ensure their policies require reporting of medical authorization or addiction issues before there’s an incident that leads to testing. This will give employers a better foundation for disciplining employees.”
She adds that there are also issues surrounding when an employer can test an employee. “In most cases, employers can implement pre-employment or pre-access to site testing, testing after an incident occurs, return-to-work testing after an employee has been off to seek rehabilitation for an addiction, and reasonable cause testing. However, most employers will not be able to implement random drug and alcohol testing in the workplace.
“Although case law suggests that random testing may be an option,” says Elawny, “it will only be available in dangerous workplaces when there’s evidence of an issue with a drug and/or alcohol problem in the workplace. It’s also currently unclear what will constitute sufficient evidence of an issue in the workplace to allow random testing.”
Many employers, like the City of Calgary, already have a substance use policy in place. Miriam Van Essen, leader of health management, human resources, says, “The city’s standard of review (fitness for work) already encompasses the use of legal or illegal substances which includes alcohol, prescription medication and over-the-counter medication that can impact an employee’s fitness for work.
“The policy sets out expectations for employees, contractors and volunteers, and substance use in the workplace. It is an important part of our commitment to promote and maintain a safe, healthy, respectful and productive work environment.”
The legalization of recreational cannabis will not change the city’s testing protocols. “As part of employer obligations under the Alberta Human Rights Act, the City of Calgary helps employees obtain treatment when a dependency has been diagnosed by a substance abuse expert. Where there isn’t a dependency, employees who violate the substance use policy may be subject to disciplinary action, up to and including termination of employment.
“Cannabis,” says Van Essen, “simply moves from being in the ‘illegal substance use’ category, to ‘legal substance.’ Medical cannabis (where an authorization has been issued) is handled the same as any other medication. As a result, the city is taking an approach of ‘business as usual.’ That said, we will be communicating with employees, alongside code of conduct training, to remind them of the fitness-for-work standards, and their obligations under the substance use policy.”
Interestingly, Chappel says, “Surveys conducted by the Centre for Addiction and Mental Health in 2014, and by the Canadian Centre on Substance Use and Addiction in 2017, indicate that marijuana is used by about 10 per cent of the population on an annual basis, with about 40 per cent using in their lifetime. In comparison, alcohol is used by approximately 80 per cent of adults.”
Employers, cautions Chappel, should not wait until legalization to implement an “impairment in the workplace” policy. “The key steps to reducing the impact of impairment on the workplace are to have appropriate mechanisms in place, to provide clear guidance to all workplace parties, and to apply workplace policies and programs using a fair and consistent approach.”
The legalization of cannabis will have its challenges, but Van Essen says, “The key message is that nothing is really changing – employees continue to be required to report in a condition fit for work and to remain fit for work during their shifts. They need to be able to safely and effectively perform their work, irrespective of whether cannabis is legal or not.”