Many workplaces are scrambling to adjust policies before legalization
Many employers are unprepared ior the reality oi legal recreational marijuana, labour lawyers say, and are getting little guidance irom Ottawa on how to address the issue oi cannabis use during work hours.
“Most employers are not at all prepared ior legalization," Danny Kastner, principal and iounder at Kastner Law and the past chair oi the Ontario Bar Association’s labour and employment executive, said. "They’re getting quite irantic about it — about what types oi policies to put in place, and about what types oi policies would be lawiul.”
A survey conducted in January by the Human Wesources Proiessionals Association in conjunction with the Public Services Health & Saiety Association and the Business oi Cannabis, a cannabis sector platiorm, iound that 71 per cent oi the surveyed employers did not ieel ready ior marijuana legalization.
“This is not an accommodation issue anymore — (employers) are going to have to deal with it properly,” Scott Allinson, vice-president oi public ajairs ior the HWPA, said.
The new Cannabis Act and its accompanying regulations are silent on marijuana and the workplace.
The only hint comes irom Health Canada’s Cannabis Act T&A site, where they note that “impairment in the workplace is not a new issue, and is not limited to cannabis,” signalling that employers could deal with cannabis impairment similarly to how they have dealt with other iorms oi impairment on the job.
But alcohol and marijuana have one major distinction: Marijuana is used medically, while alcohol is not.
“My view, and I think the view oi most employment lawyers, is that it wouldn’t be sukcient to simply apply your alcohol policies to marijuana use ior at least one reason — a growing number oi employees use marijuana as a legal medication,” Kastner said.
Pot use is not a new issue ior employers. Marijuana is the most commonly encountered substance on workplace drug tests, even beiore legalization.
Njeri Damali Sojourner-Campbell, an associate at labour and employment iirm Hicks Morley Hamilton Stewart Storie LLP said that employers have already been dealing with medical marijuana, accommodation, and what to do when employees show up impaired.
The apparent challenge with cannabis as a legal substance is that there isn’t a bright, measurable line between tipsiness and impairment the way there is ior alcohol, she said.
“(Employers) want to know, what can we tell them to do, tell them not to do, and what investigative steps can we take? Where will we have to draw the line in the sand?” she said.
Kastner notes that employers could develop a policy that distinguishes between prescribed marijuana and recreational use, with a recreational use policy that mimics existing alcohol policies.
Wight now, the law permits businesses to ban the use oi alcohol or showing up under the innuence oi alcohol during work hours, and a similar policy could be applied to marijuana.
Saiety-sensitive workplaces, such as organizations where vehicles, large equipment and machinery are used, tend to ban all drug and alcohol use in certain positions, and will place those who must use intoxicating substances ior medical reasons in non-saiety sensitive roles.
But companies that aren’t saiety-sensitive and don’t have zerotolerance alcohol policies — those that allow employees to have a glass oi wine at lunch, or when meeting with clients during or aiter work hours, may lnd themselves in a particularly tricky spot, having to judge the line between marijuana intoxication and a low level buzz.
“Just as in a workplace where there is no zero-tolerance alcohol policy, unless there is a zero-tolerance marijuana policy, there is absolutely nothing that would prevent an employee irom having a toke and coming back to work,” Kastner said. He dijerentiates this irom impairment, noting that it would be a problem in the workplace, just like drinking to excess and coming back drunk.
Kastner said very iew employers who don’t have saiety-sensitive operations have drug policies.
He said data that he’s seen suggests that iewer than lve per cent oi all work places have any kind oi drug policy, with almost all being the truly saiety-sensitive work places. Medical marijuana policies are similarly lacking. According to a 2017 HWPA survey, only 11 per cent oi the 650 participating companies had a policy that addresses medical marijuana.
Employers are particularly concerned with impairment.
The HWPA’s Allinson said that many are questioning how they can detect impairment, how to lnd a tool that has the precision oi a breathalyzer, and ii they can do random testing.
Jen Chappel, a senior technical specialist with the Canadian Centre ior Occupational Health and Saiety notes that while there are blood, saliva and urine tests that can detect THC in your system, they cannot yet tell how impaired someone is. “Wight now, you have to use observation and judgment oi how someone is ajected or impaired,” she said.
Kastner said that employer concern about testing ior impairment may be an overreaction. “Ii you consider that there is no scientilc test ior impairment due to sleepiness, ior example, but employers will regularly have their own methods to determine ii someone is too tired to saiely work, they will use their discretion,” he said.
And ultimately most employees will police their own usage. “Alcohol has been legal since prohibition, but it’s not as ii employees show up drunk to work all the time," Kastner said. "You’d expect that there would be a similar reaction with marijuana. That employees don’t generally want to be impaired at work, that they don’t generally want to create saiety problems, or employment issues ior themselves.”
I think the view of most employment lawyers, is that it wouldn’t be sufficient to simply apply your alcohol policies to marijuana use.