Industry navigating new world of legal pot
‘Line is drawn at ensuring safety’ as sector weighs appropriate policies
As human resources managers in the mining industry prepare for Canada-wide marijuana legalization, they may be tempted to consider the reputed stress-relieving properties of cannabinoids.
Provisions of the federal Cannabis Act, expected to become law sometime this summer, will mean that companies shouldn’t just add the word “cannabis” to their drug and alcohol policies and assume they’re covered, lawyers say.
Saskatchewan’s mining industry, like other sectors across Canada, is working to understand the potential impacts of the new law on their operations and to adopt appropriate policies.
Members of the Saskatchewan Mining Association (SMA) have policies to cover medically prescribed use of cannabinoids, legalized in 2014 by Ottawa. But the impending legalization of “recreational” marijuana use is still being examined by SMA members, says president Pam Schwann.
“The line is drawn at ensuring safety” and on-the-job impairment — by any means — will not be tolerated in a safety-sensitive environment, Schwann says.
“We don’t think it’s conducive to a safe work environment” where very large equipment is in constant use and impairment can result in “lifealtering consequences,” she says. “The key is that people have to be fit for duty.”
The catch, Schwann acknowledges, is that no one has a legally binding definition of what constitutes cannabis impairment.
Unlike alcohol, marijuana persists in the body after its effects wear off, with the result that current testing for cannabinoids doesn’t reflect impairment in the way that blood-alcohol levels indicate inebriation. Moreover, as pot has been hybridized and its effects have grown stronger, some tests have shown that impairment can last more than 24 hours, implying that Sunday home use can potentially result in on-the-job impairment Monday morning.
Some SMA member companies do pre-employment drug screening and all test for drugs and/or alcohol after a safety incident — but marijuana legalization might invalidate any result involving a cannabinoid, since home use will be legal and the test can’t prove impairment.
“We’d like to have a decision on the definition of impairment,” Schwann says.
Amy Groothuis, a labour and employment lawyer with Miller Thomson in Regina, says employers should take cannabis legalization as an opportunity to review policies on workplace impairment. Groothuis adds that companies should consult expert counsel as part of that process.
“In my view, it’s more than simply adding the word ‘cannabis’ or ‘marijuana’ to a policy,” she says.
It’s about establishing expectations of all employees, she adds.
“Where expectations are described and then communicated to employees, an employer can rely on that if and when those expectations are breached.”
Breaches might include: showing up for work impaired; having cannabis in an employee locker; or failing to disclose a prescription that could impair ability to perform duties in a safe and competent manner. Groothuis adds, however, that if an employee discloses either an illness requiring doctor-prescribed cannabinoid consumption or a dependency on marijuana, the employer has a duty under the Saskatchewan Human Rights Code to accommodate the employee’s disability “to the point of undue hardship.”
“In both cases (illness or dependency), that employee must be accommodated to the point of undue hardship,” she says. “Examples of accommodation are reassigning the employee to another job for a period of time or modifying their start and end times of work so that they can consume their medicinal marijuana at a time that would not cause impairment at work.”
In a written brief, Groothuis’ Saskatoon-based colleague, Jon Daniliw, stresses that “the duty to accommodate use of cannabis as a treatment for a disability arises only where an employee has obtained proper medical authorization” and that a prescription “does not simply entitle an employee to use cannabis at work or to attend work while under the influence.”
Rather, it requires a plan that will allow the employee to “participate in work activities to the extent possible, without creating undue hardship for the employer,” and this typically means a removal from safety-sensitive duties.
Groothuis says “the accommodation process is highly individualized, but the considerations are often the same. For that reason, it makes good sense for an employer to develop what is essentially a roadmap to follow for those instances where an employee requests accommodation through a workplace policy.
“In a unionized environment,” Groothuis adds, “I think it’s very important for the parties to work together to clearly establish employee expectations, whether through policy, the collective agreement or other communications. Avoiding impairment in the workplace is as much about fostering a culture of workplace safety as it is relying on objective criteria and/or drug tests.
“By clearly establishing expectations, by communicating those expectations to your employees and by involving your employees in the process, an employer is more likely to instil a culture of workplace safety,” she says. “That (process) will assist in avoiding incidents or injuries, with the resulting time loss, financial consequences and possible occupational health and safety charges.”
Under the proposed Cannabis Act, each province is left to develop its own laws on sale and use of marijuana and Saskatchewan has set a minimum age of 19 for purchase and use of cannabis.
In my view, it’s more than simply adding the word ‘cannabis’ or ‘marijuana’ to a policy.