Take a deep breath and relax
By Lorenzo Lisi
The federal Cannabis Act (the Act) and its regulations will come into force on Oct. 17, 2018. The legislation imposes strict restrictions on promotional
and advertising activities relating to cannabis in pursuit of a key policy goal of the government: to avoid exposure of cannabis to young people. This priority is clear throughout the Act – from production to packaging to final sale – and includes advertising and promotional activities.
However, there are few official guidelines on how employers can appropriately deal with cannabis use (both medicinally and recreationally) and how it impacts their risk profile when it comes to impairment at work and employees in safety-sensitive positions.
The good news is that employers are already armed with many of the tools they need to address the issue. The better news is that the rules are not that much different than those already in place for use of illegal substances (remember, cannabis was once illegal) and alcohol. A quick review makes sense.
Cannabis at work
When it comes to recreational use, workers do not have the right to be impaired at work or to consume marijuana at work. A simple analogy: alcohol is legal, but employees cannot show up to work intoxicated or drink while on the job.
If the worksite is safety-sensitive and intoxication poses a real and pressing concern to worker safety, not only can an employer implement a policy to prohibit marijuana consumption (or consumption of any substance which causes impairment) on the job, but there should already be one in place in light of the employers’ obligation to take all reasonable precautions to protect the health and safety of its workers under occupational health and safety legislation. On that point, a recent decision in Alberta (Canadian Energy Workers’ Association v. ATCO Electric) held that the decision to drug test employees after a low speed collision at a remote worksite was reasonable, deeming that the requirement continues to be justified where: 1) The incident is significant or is a near miss that could have been significant; 2) The employer asks the employee for an explanation before requiring the drug test; and 3) There is some basis for the employer to need to rule out impairment as a cause of the incident.
To summarize then: Employees cannot be impaired at work. They cannot use cannabis openly at work, despite the fact that it will be legal (subject to accommodation issues). And if the employee is impaired, there may be testing which is allowable (in certain circumstances).
You have a policy for that
Employers have been addressing impairment at work for years. The advent of recreational marijuana only means that the policy can no longer treat marijuana as an “illegal substance.” It does not mean that employees are permitted to use it at work or that they can show up to work impaired. This is a good opportunity for employers to review and update their policies on drug and alcohol use in the workplace. The following provides some guidance:
While use is “legal,” prohibiting recreational use and possession at the workplace is permissible, providing that the company has a consistent approach to use and possession during work hours. For example, does the company permit alcohol at lunch? After hours? With clients? Consistency is important.
- Update policies regarding accommodation (with a clear reference to rehabilitation processes, return to work, etc.).
- If there is a “testing” component, it should be fulsome with details on the process (how the test will be conducted, privacy and confidentiality and results).
- Update the policy on the disclosure of marijuana ues – and any other narcotics – and highlight the requirement to disclose the use of prescription drugs that might impact employee performance or the ability to work safely. Specifically:
- Include a clear and express statement that the policy promotes safety and deters unsafe behaviour.
- Encourage/require employees to disclose substance abuse issues without fear of reprisal or discipline, including situations where the employee may be using illicit drugs, but may not consider their self to be addicted.
- Provide a process for employees to ask for and obtain treatment.
- Maintain confidentiality.
Clarifying both the duty to disclose and the prohibitions on use and possession at work will go a long way in allowing an employer to effectively deal with impairment at work. Remember, employers may still rely on the policy where there is a breach, including the failure to disclose.
Handling impairment at work
The biggest challenge for employers will be addressing possible impairment at work. However, in many ways, this is no different than how employers have been dealing with possible alcohol impairment.
Generally, if an employee exhibits signs of impairment at work, they should be interviewed and if there is any concern about impairment, sent home. They should not be allowed to drive and, in most cases, not permitted to remain at work in an impaired condition. Take notes from all other persons who interacted with the employee, which should include specific questions about the employee’s behaviour. Prior to any re-attendance, the employee should be interviewed and asked about his/her intoxication/impairment at work and, further, asked to provide an explanation. During this period, an Employee Assistance Program should be offered to the employee. If no explanation is offered (i.e., the employee does not advise of any medical condition or addiction), then determine if discipline is appropriate in the circumstances. Assess all factors in coming to this conclusion. Above all else, do not sacrifice the safety of the workplace to wait to remove the employee. It is much better to be safe than sorry.
The legalization of cannabis won’t end the concern of employers as it relates to this area. The important point is that they should never take their eye off the goal of workplace safety. By having effective policies in place, enforcing them consistently and monitoring their workforce diligently, employers can not only avoid legal liability, but work towards a safer workplace.
Lorenzo Lisi is the leader of the Workplace Law Group at Aird & Berlis.