Cannabis In The Workplace: The New Wild West

Legalization

What is Cannabis?

• Psychoactive drug derived from a cannabis plant.
• Active ingredient is THC (Tetrahydrocannabinol).
• THC produces a "high" sensation in users.

• High varies depending on the potency of THC and the strain of Cannabis.

• Can also be consumed in a non‐psychoactive form without THC (ex. Cannabidiol (CBD) Oil).
• Used to treat chronic pain, anxiety & other ailments.
• REF: Elaine Farrell and the Toronto Transit Commission.

Views on Canada's Legalization of Cannabis

• Cannabis legalization is a "national uncontrolled experiment"
  
  
  • Dr. Diane Kelsall, Canadian Medical Association Journal
• "Canada's giant public health 'experiment' with legalized cannabis"
  
  
  • Nicole Ireland, CBC News

Cannabis Act (Bill C‐45)

• Purchase and use of recreational cannabis became legal Canada‐wide on October 17, 2018 for all individuals over 18.
• In Ontario:
  
  
  • legal age is 19.
  • cannot be consumed in public places except where cigarettes can be smoked.
  • cannot be consumed in vehicles.

  STATISTICS

  Cannabis in Canada: Who is consuming?

  • 2/10 Canadians consume cannabis in some form each year
    
    
    • Less than use alcohol and cigarettes
  • Canadians who use alcohol and/or cigarettes are more likely to also use cannabis
  • 1/10 Canadians will develop some dependency with regular use
  • More than 30% of Canadians surveyed prelegalization said they would consume marijuana if legal.

  Managing Cannabis in the Workplace

  • Impairment and Testing
    
    
    • When can employers test? What is the law?
  • Accommodation: disability protected under Human Rights legislation
    
    
    • What is accommodation? When is it required? What does it entail?
  • Policies
    
    
    • How should employers deal with legalization in their policies?

  What's happening so far...

  • Toronto Police and RCMP – cannot use within 28 days of reporting for duty.
  • Calgary Police – zero tolerance policy.
  • Air Canada and WestJet – cannot use if in safety sensitive positions.
    
    
    • Random drug testing to deter use.
    • Alcohol policy only prohibits drinking within 12 hours of shift.
      • 8 hours from bottle to throttle.
  • Vancouver and Ottawa Police – "fit for duty" policy
    
    
    • Similar to their alcohol policy.
  • TTC – cannot use if in safety sensitive, specified management and designated executive positions.
    
    
    • Random testing
    • Union is fighting the policy as "arbitrary".
  • Metrolinx – "fit for duty" policy.

  IMPAIRMENT AND TESTING

  • Issues arise with testing for cannabis impairment:
    
    
    • How to test?
    • How to determine impairment?
  • Tests exist to assess the level of THC in the individual's body, actual impairment is not ascertainable.
    
    
    • Presence of substance ≠ impairment.
      • Unlike alcohol/breathalyzers.
    • Impairment via THC is variable.
      
      
      • Different people react very differently to different strains, amounts, etc.
    • Employers will not have access to tests used by police.
  • Employee drug and alcohol testing is only permitted under Human Rights Law when:
  • The employees are operating in safety‐sensitive employment settings;

  AND

  • A series of additional requirements placed on employers who conduct testing are met.
  • We must balance employer's need to ensure a safe workplace and employee's right to privacy.
  • Testing should not lead to negative consequences for people with addictions or perceived addictions.
  • Testing should be implemented to measure impairment, not to deter use or to enforce morals.

  Random Testing

  • No automatic right to random testing.
  • Random testing cannot be justified unless:
    
    
    • It's a highly dangerous workplace, or safety‐sensitive position;
    • Accidents and mistakes have demonstrable consequences;
    • The employer can show there is a problem with addiction in the workplace.
  • Likely to be permissible post‐incident or post‐ "near miss".
  • Blanket policy for all employees will not be permissible.

  IRVING PULP AND PAPER

  Dangerous workplace + workplace problem

  "a unilaterally imposed policy of mandatory, random and unannounced testing for all employees in a dangerous workplace has been overwhelmingly rejected by arbitrators as an unjustified affront to the dignity and privacy of employees unless there is reasonable cause, such as a general problem of substance abuse in the workplace" – Irving at para. 48

  "an employer must justify the intrusion on privacy resulting from random testing by reference to the particular risks in a particular workplace."‐ Irving at para.20

  Drug and alcohol testing in inherently dangerous work environments is permitted in two sets of circumstances:

  1. "for cause" testing of individual employees where there are reasonable grounds, post‐incident, or as part of a return to work agreement .
  2. if an employer can demonstrate that there is a generalized problem of drug or alcohol abuse in a particular workplace that is an inherently dangerous working environment.

  **Every case is different and must be evaluated on its own facts**

  DUTY TO ACCOMMODATE

  Ontario Human Rights Code

  • Does the employee have a disability under the Human Rights Code?
  • Is the employer able to provide accommodation to the employee?
  • Can the workplace or duties be modified so that the employee can do his or her work safely and effectively?
  • Threshold ‐ undue hardship
    
    
    • Cost;
    • Outside sources of funding (if any);
    • Health and safety requirements (if any).
  • If accommodation is required, employers should confirm:
    
    
    • Use is necessary as part of the accommodation;
    • The employee can safely continue to perform his or her duties.
  • If there is impairment, than the employer may not be required to accommodate especially if the position is safety sensitive.
  • Employers do not act alone in accommodation.
  • Employees have a duty to cooperate and assist the employer.
  • The employee must:
    
    
    • Obtain appropriate authorization;
    • Inform the employer that they require accommodation;
    • Be reasonable ‐ cannot expect or demand a perfect solution.
  • There is no right to be impaired at work, or to compromise their own safety or that of others.

  Accommodation – Terms

  Employers can add terms and/or conditions to employee accommodations. For example, an employer could add terms:

  • Clearly prohibiting impaired employees from appearing in the workplace.
  • Setting limitations for the employee's use (ex. stop consumption ___ hours before work, only consume in certain areas/privately, etc.)
  • Requiring continuous evaluation of whether an employee could/should be moved to less safety sensitive position or removed from duty temporarily.

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  The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.