Legal Briefs: Is your workplace cannabis ready?
By Medicine Hat News on April 21, 2018.
Cannabis use is nothing new, but employers have new reason to think about it. The Cannabis Act (Bill C-45) will come into force this year, creating a legal framework for the sale, use and possession of cannabis in Canada. This development is significant, and it is important to assess the impact of legal cannabis on the Canadian workplace. How will cannabis affect workplace policy, workplace safety, an employers’ duty to accommodate and drug testing? Cannabis usage can impair cognitive function, reaction time, and short term memory. Such impairment gives rise to several concerns for employers. Employers in “safety-sensitive” industries, for example, should be concerned about impaired employees operating vehicles, equipment, or machinery. Some employers are also concerned legal cannabis will impact employees’ job performance or attendance. Employers appear to have two principal options for addressing cannabis in the workplace: a “zero-tolerance” policy, or an accommodation policy. Both options may be problematic. Unlike alcohol, cannabis can be detected in the bloodstream days or even weeks after ingestion. As such, there is currently no medical test to reliably measure a person’s impairment. Likewise, there is currently no consensus on a safe limit for ingestion and a zero-tolerance policy may discriminate against employees who use cannabis to treat illness. Employers — and particularly employers in safety-sensitive industries — should think carefully about their approach to legal cannabis. Some industry leaders have encouraged a middle road. Enform, an oil and gas safety association has recommended express prohibitions on cannabis usage in the workplace combined with a time limit on when cannabis use is permissible before starting work on a safety-sensitive worksite. To find out more details about Enform’s recommendations check out the Enform Blog on enform.ca. There is also a danger of overreaction. Cannabis can be ingested in various forms and dosages, some of which will not impair an employee’s ability to perform job duties. Impairment and tolerance also vary greatly between individuals. One should also be mindful of employees with prescriptions for medical cannabis or who have substance abuse issues. Do not go looking for trouble! Rather than tackling these issues in a negative way, consider enacting clear and thoughtful drug policies, define “impairment,” and set reasonable limits on what is acceptable in the workplace. Cannabis policy is highly dynamic and change is coming fast. I encourage all employers to review and update their drug and alcohol policies with their employees to specifically address cannabis usage. Record the results of this review. Both workers and employers have a personal and legal responsibility to take every reasonable precaution to ensure safety in the workplace. Try to earnestly develop reasonable protocols and rules for accommodating medical cannabis users and for how (if at all) employees can appropriately ingest cannabis prior to or during work. Legal cannabis is taking Canada into uncharted waters. Workplace rules concerning cannabis must strike a balance between the health, privacy, and autonomy rights of workers, and the legitimate business interests of employers. Striking this balance is challenging and I encourage business-owners to proactively seek professional advice to manage the challenges of legal cannabis. Kenneth Taylor helps you navigate the turning points of life. He is a student-at-law with Pritchard & Co. Law Firm LLP. Contact Ken at 403-527-4411 or at ktaylor@pritchardandco.com 9-8
