Although the use of medicinal marijuana is not new to Canada, the Cannabis Act legalizes the drug for recreational use across Canada. It is estimated that the number of adult recreational users could increase to be as much as 40% of the population, which is a big concern for employers. Approximately 45% of human resource professionals surveyed did not believe their current workplace policies effectively addressed issue that could arise as a result of the legalization of marijuana.
Some of the main concerns are about the direct effects recreational cannabis use could have on
• Workplace health and safety
• Vehicle safety
• Disciplinary procedures
• Work performance
• Work attendance
Marijuana use, whether legal or not, has the potential to cause a number of administrative and safety concerns for businesses – especially if the employer’s role and obligations are unclear. Workplace impairment is a serious concern for businesses, and it’s important that businesses understand what may be expected of them, among other critical workplace considerations. Employers can then manage risks in an attempt to avoid or reduce situations that may harm their business.
Because impairment of any kind can directly affect workplace health and wellness, employers are expected to respond. Even with the legalization of recreational marijuana, employers must continue to put the safety of their workforce first.
Occupational health and safety laws across Canada require employers to maintain a safe work environment and to protect the health and safety of everyone in the workplace and the public first and foremost. This duty is known as due diligence and refers to the level of judgment, care, prudence, determination, and activity employers are expected to exercise when safeguarding their workers.
If an employee consumes any substance that causes impairment, legal or not and for medical purposes or not, workplace rules regarding impairment apply. Employees do not have the right to be impaired at work, regardless of the legality, because impairment may endanger their own safety or the safety of others. The human rights of all employees need to be considered, especially concerning the use of medicinal marijuana. If an employee has a medical need to use marijuana as a form of treatment the employer must take steps to accommodate the worker. However, in situations where it would be too costly to do so, would cause too great a change to the structure of the work, or if it would create a health and safety risk, the employer can apply to the courts to avoid accommodating the worker.
Podcast – Legalization of Marijuana
Legal recreational marijuana is relatively new territory. What does the new legalization mean to your business? How will you interact with employees? What are your rights and your employees’ rights?
When it comes to managing marijuana use in your organization, establishing a clear workplace impairment policy is crucial. The following are some general best practices to help you create a clear and effective policy:
1. Conduct consultations before drafting your policy.
To ensure your policies address real-world concerns it’s a good idea to meet with HR representatives from your organization, legal counsel, and employee representatives. These consultations can help organizations assess their strengths as well as the general impact of cannabis in the workplace.
2. Outline your organization’s position on workplace impairment clearly.
Communicate your organization’s stance on workplace impairment. Employers should clearly state the reasoning behind their position and what compliance steps will be taken to uphold workplace policies. If you decide to tolerate consumption, you should clearly define the maximum acceptable limit (before the substance is considered to affect the user’s faculties) and adopt a preventive, non-repressive approach. Above all, provide concrete examples of what is and isn’t tolerated in the workplace and account for all forms of cannabis.
3. Involve the right people.
When creating or amending a policy on workplace impairment, it’s important to set up a committee, which should be composed of representatives from HR, legal and communications departments, unions, and select employees. The committee will ensure consistent rules across the entire organization and will also be tasked with regularly reviewing policies on impairment.
When it comes to managing marijuana use in your organization, establishing a clear workplace impairment policy is crucial.
4. Avoid employee conflicts.
Depending on their age, beliefs, and a variety of other factors, some employees may be more against marijuana use than others. Be aware of this and provide consistent, transparent information regarding your policy and marijuana in general. Being open and honest about your position on workplace impairment can help limit any potential blowback.
5. Keep your policies up to date.
In addition to affecting employers of all kinds, the legalization of cannabis will have a sprawling impact on case law. It is therefore important to remain up to date on decisions and rulings – they could affect how you manage workplace impairment. What’s more, a regular review of the policy could provide the opportunity to remind everyone of its goals, limitations, and constraints.
6. Implement and communicate your policy.
Prior to implementing your policy, take the time to train your managers. These individuals need to understand the purpose and enforcement measures of your policies. As a supplement to this, your organization needs to be thorough in communicating the use and goals of your policies to promote company-wide buy-in. Regardless of who is communicating them, policies need to be introduced clearly and objectively.
Employers need to consider creating or amending policies that pertain to impairment from a variety of substances, not just cannabis. At a minimum, policies should address the following:
1. Employee conduct standards.
In your policy, clearly state that you expect employees to show up fit to work. In terms of recreational marijuana use, it’s a good idea to mirror your approach to alcohol and cigarette smoking. In fact, existing policies that prohibit alcohol consumption in the workplace during scheduled hours can easily be updated to include recreational marijuana.
2. Guidelines for employee use of substances.
Policies should be flexible and identify situations where employees must report the use of medicinal substances that may cause impairment. Encourage employees to tell their supervisor or not attend work if they believe they are impaired by a substance, legal or otherwise.
3. Substance-related impairment.
Policies need to set guidelines for evaluating whether an employee is impaired in the workplace. These guidelines can be established through things like documentation, reporting procedures, and checklists. It’s important to remember that if you have reasonable grounds to believable an employee is impaired on the job, you need to act with caution. The level of information employers can request depends largely on the circumstances and should be assessed case by case.
Lastly, whether making changes to your existing workplace policies and procedures or starting from scratch it is important to seek the help of trained professionals and to seek legal advice to ensure you are not infringing on any employee’s rights.
First published in the December 2018 edition of The Business Advisor.