Workplaces to decide pot rules for employees
Federal labour code remains unaltered
OTTAWA • With recreational cannabis one week away from becoming legal, federal officials say it’s up to each workplace to decide if their rules around employee cannabis use need updating.
The government did not change labour code requirements or stipulate any workplace drug-testing rules when it passed cannabis legislation last June. Instead, it has general guidelines available. The result is a range of rules around cannabis use when it comes to federally regulated workplaces, which employ eight per cent of Canadian workers. Other workplaces will have to consult provincial guidelines and rules.
“Impairment is not a new issue in workplaces,” said a senior government official at a briefing in Ottawa on Wednesday, explaining why labour rules were unchanged. “Where impairment does create a hazard or risk in the workplace, workplace parties have already developed policies. What they’re being encouraged to do is revisit their policies based on the legalization of cannabis, and take whatever measures are necessary … to ensure those risks are minimized.”
The briefing, which was given on the condition that names not be used, included officials from a variety of federal agencies such as the Department of National Defence, the RCMP, the Canada Border Services Agency and Transport Canada.
In some cases, the rules are staying the same. A Transport Canada official said that airline pilots, as one example, have always had a zero-tolerance requirement for cannabis (medical or otherwise) to obtain and renew their medical certificate that allows them to fly, and that won’t change with legalization.
For most other positions regulated by Transport Canada, the minimum standard is showing up to work “fit for duty,” and it is already a crime to operate a mode of transport while impaired by any substance, legal or illegal.
But other agencies are bringing in new rules to coincide with legal recreational cannabis. Border guards in certain security-sensitive positions will be prohibited from using cannabis 24 hours before coming on duty. The same 24-hour prohibition will be in place for federal prison guards.
Military employees will have varying requirements based on their job: an 8-hour prohibition before showing up for duty, a 24-hour prohibition before handling a loaded weapon or driving a vehicle, and a 28-day prohibition before deploying on a submarine or operating an aircraft.
The RCMP is also adopting a 28-day cannabis prohibition before police officers start a shift, in contrast with some other forces that are simply requiring officers to show up “fit for duty.” An RCMP official justified the 28-day policy on the grounds of unsettled science.
“Right now there is not a whole of precise research between the 24-hour limit and the 28-day limit ... in terms of what could be the longerterm residual impairment, what level of impairment could exist, and how long that impairment could exist,” the official said. “Research says it could be from a few days to a few weeks.”
For the roughly 260,000 federal public servants, officials said there is no catchall rule across government departments; each is responsible for updating its own policy, and in some cases there may be no update. “There are a lot of codes of conduct, for example, that already cover impairment that would include cannabis,” one official said.
Workplace drug-testing rules, meanwhile, remain unregulated federally, to the annoyance of some employers. They argue they need clarity due to conflicting court decisions on whether random drug-testing regimes are constitutional. Canada’s human rights tribunals and labour arbitrators have generally viewed random drug-testing as a privacy violation, though a 2013 Supreme Court of Canada decision did identify some limited cases where drug-testing could be used.
“There’s confusion in this space over what the rules are, what is allowed, what is not allowed, how is it to be done,” said Derrick Hynes, executive director of Federally Regulated Employers — Transportation and Communications, in an interview earlier this year.
The government formed a special committee on workplace impairment with representatives from federal labour unions and employers, but so far no new rules on drug-testing have come forward.
Speaking Wednesday, a government official said employers should carefully consider their own needs before looking at a drug-testing program, and said there are alternatives, such as close supervision and frequent face-to-face conversations with employees, to identify hazards and concerns around impairment.