‘Can I bring cannabis to the company party?’: Policies for marijuana legalization
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Cannabis is set to be legalized this summer in Canada, and it’s opening a new realm of questions for employers and staff. How might an employer respond if he or she is approached by an employee and asked, “Can I bring cannabis to the company party?”
“When it becomes legal, we might not have a huge spike of people showing up to work impaired, but there might be a shift in societal expectation of cannabis use,” explained Jon Danyliw, an associate for Miller Thomson law firm in Saskatoon.
Danyliw spoke about cannabis in the workplace at the Construction Law Conference in Saskatoon in April. The message: It’s a good time to implement a policy if there isn’t one in place. Better yet, it’s time to review the current policy.
Employers have a duty to provide a safe workplace, and it poses a potential problem if impaired individuals perform jobs that could endanger other employees or members of the public. “Just like alcohol, employees can’t be impaired by cannabis at work,” Danyliw said.
If a charge results from an accident, employers must prove they acted with due diligence to prevent that situation. Employers control the workplace, therefore, it’s their responsibility to ensure that staff aren’t impaired at work. That means recognizing what marijuana impairment looks like and how to handle it.
There are two main chemicals in cannabis: THC (tetrahydrocannabinol) is the substance that causes impairment, while CBD (cannabidiol) has been researched for therapeutic uses, and studies show it doesn’t cause impairment. In fact, some studies indicate CBD can decrease the effects of THC.
The type of impairment also depends on how the marijuana is consumed. If it’s smoked, the onset is rapid and peaks after 30 minutes, with a duration of two to four hours. If it’s ingested, the onset is slower and the effects can last much longer.
THC can stay in your body for a very long time -- it can be detected up to a week later -- and current testing only tells you if it has been used recently, not whether someone is impaired at this moment, like breathalyzers for alcohol. Also, unlike alcohol, there’s no generally accepted level of THC that’s going to deem a user impaired. A new testing system allows for a saliva test that can say whether someone ingested THC in the past eight hours, but it’s not widely used yet.
Signs of marijuana use:
● Smells like marijuana
● Bloodshot eyes
● Increased appetite
● Memory impairment
● Difficulty paying attention or solving problems
How to handle an impaired worker
If you notice an employee acting differently and displaying signs of marijuana use, you have reasonable cause to ask them if they’ve been using. Workers have a duty to disclose if they’re using any kind of drug that might impair them, including prescriptions.
It’s helpful to have more than one person on site with training, so that if a manager identifies someone who they think is impaired, someone else can also make a judgement before that person is sent for testing.
If a manager is talking to that person about why they’ve been asked if they’re impaired, that should all be recorded in an incident report. The union also should be alerted.
“Memory changes over time,” Danyliw said. “It’s important to have that report.”
The policy should include that a worker will be considered unfit for work if they’ve used within eight hours before their shift, and if it’s determined that they have used, they might be sent home. The policy also should include how the employer determines impairment, who it will be reported to, and who will be present.
“It’s the employee’s well-being and safety that’s important here,” Danyliw said. “It’s not to find ways to punish employees, though discipline may result.”
Employers are encouraged to gather information in an empathetic and supportive way. If employees don’t have a safe person to go to, they might be scared to tell their employer if they have used or are dependent on cannabis, which could lead to concealed use and an impaired person on your work site.
Some companies state they take a zero-tolerance approach to drug or alcohol use, but that stance is actually more difficult to apply in practice.
Random drug testing generally isn’t upheld as legal, Danyliw said. It’s difficult to have a court or human rights commission uphold a random drug testing policy if a business were to be challenged on their use of such a system. Any kind of testing is only accepted if safety is part of the job.
Addictions have been held by human rights commissions and courts to be a disability by law. That means if an employee admits to his or her employer that he or she has an addiction, the employer has a duty to accommodate them.
How you accommodate them, and for how long, will depend on the nature of the employer. If accommodating them causes “undue hardship,” you’re released from that duty, though the concept of undue hardship will differ depending on the company.
Danyliw gave the example of a small electrician company with six staff members: If one of those staff members is identified as having addictions issues, it would be more difficult for such a small company to accommodate them. A larger employer -- like City of Saskatoon, for example -- would likely have to find other work for that person to do.
It’s not always possible to give the employee what he or she wants when you’re accommodating them -- that’s up to the employer to decide subject to the employer’s duty to make a reasonable accommodation for that person.
A company’s policies should address accommodation. How would you respond if an employee disclosed a substance abuse problem to you?
“It’s the process that you put in place that’s going to be important,” Danyliw said. “Employers who are aware of risks take steps to minimize them.… those companies are less likely to deal with fatalities and safety issues in the workplace.”
The Saskatchewan Construction Safety Association (SCSA) is an industry-funded non-profit organization that provides cost-effective and accessible safety training and advice to employers and employees throughout the province. Visit www.scsaonline.ca for more information. Miller Thomson provides comprehensive business and legal help. For more information on Cannabis legalization visit /www.millerthomson.com/en/our-people/jon-danyliw/