July 2018 is fast approaching. In 2017, Health Canada indicated that marijuana legalization would take place no later than July 2018. Marijuana has both medicinal and recreational uses – Canada has authorized medicinal use for over ten years. However, the science behind marijuana and marijuana use is in its infancy, even if there are some very clear results from medical use.
As we move toward legalization in July, employers need to know a number of things. This article highlights ten issues that could arise in your workplace once recreational marijuana use is legal.
1. The type of use matters: Medicinal versus recreational
When faced with an employee who advises you that he or she is using marijuana, the first step is to look at the type of use. Medicinal use, under a valid authorization issued by a medical professional, would likely require accommodation, while recreational use may be subject to discipline. Someone who uses marijuana without medical authorization may still require accommodation if they are a dependant user, but a true recreational user can be subject to discipline.
2. The type of job matters: Safety sensitive versus non-safety sensitive
Some industries include safety-sensitive jobs (construction, mining, law enforcement, transportation, and agriculture are a few Saskatchewan examples). However, not every job in those industries is safety sensitive. For example, an administrative assistant working at a construction company’s head office would not likely fall into the safety-sensitive category, even though the assistant is working in an industry that includes safety-sensitive jobs.
3. Not all marijuana is equal
In simple terms, two main components of marijuana attract the attention of medical professionals and users: tetrahydrocannabinol (THC) and cannabidiol (CBD). THC is the main component that causes marijuana’s impairing effects. CBD has treatment effects but does not cause significant impairment. Although there haven’t been extensive studies in this area, it appears that THC accelerates the treatment potential of CBD, and therefore the combination of the two is important for treatment. When looking at marijuana being consumed by an employee, the ratio of THC to CBD is important as it provides an idea of the strength of the impairing component in the strain being consumed.
Putting the proper policies in place is the key to ensuring that there are rules your employees must follow.
4. Restricting use in or affecting your workplace
As an employer, you have the right to restrict use of marijuana in the workplace and to restrict use that affects your workplace. Putting the proper policies in place is the key to ensuring that there are rules your employees must follow. Some key elements of a workplace drug policy are discussed below.
5. Impairment duration from marijuana is four to twenty-four hours
Workplaces are able to restrict use of marijuana in a workplace, as well as use that may affect the workplace, because impairment from marijuana lasts between four and twenty-four hours, according to documents and studies in Canada. Health Canada has put the impairment period at as long as twenty-four hours, while some studies say the period may be as short as four hours. The varying types and concentrations of marijuana could affect the length of the impairment.
6. Make sure you’re using the right test
You may have heard that marijuana stays in your system for a long time and that it is detectable weeks or even months after use. While it is true that by-products of marijuana may remain in your system, the active and impairing components are generally cleared as stated above. The problem is that most of the tests we have historically used in North America are for by-products, not the active components. As an employer, consider using a saliva-based test, which looks at THC levels and not at by-products.
7. Workplace-specific policies: Some key elements
A good workplace marijuana policy includes several key elements – I’ll mention three here. First, put a duty on your employees (especially in a safety-sensitive work environment) to report the use of drugs – including marijuana – as part of their employment. Second, set out the conditions under which you will administer a drug test on your site, which can be limited in Canada (currently there is no “random” testing, although that’s being challenged). Finally, set out the consequences of a positive test, which can range from accommodation to termination, depending on circumstances.
8. Enforcement: How do you do it?
Enforcement can be the toughest part of a workplace drug and alcohol policy. First, you must identify the circumstances in which a test will be triggered; you can include an element of discretion for employers or supervisors regarding testing (keeping in mind that we always want our workplaces to be safe). Second, an employer will need to decide what steps to take when a test is positive – will the employee be sent for a substance abuse assessment or be put on a return-to-work agreement, or will there be a presumption of discipline absent medical justification? Finally, the employer needs to ensure that their practices match their policy for the workplace.
9. Occupational Health and Safety: Maintaining a safe workplace
Employers have a general duty to maintain a safe workplace, and each supervisor and employee has a corresponding general duty. However, the only place in the Saskatchewan Occupational Health and Safety regulations where drug and alcohol impairment are specifically mentioned is in the Mines Regulations, which put a duty on the employer to take all reasonable steps to ensure that nobody impaired by drugs or alcohol works on a mine site. Absent any changes to the law, most employers are going to be addressing drug and alcohol concerns under the general duty for a safe workplace.
10. Marijuana and accommodation: Dealing with a medicinal or dependant user
Medicinal marijuana users and dependant users need to be accommodated in a workplace, if accommodation is possible. When an employer is approached by an employee with an authorization to consume marijuana, the employer needs to look at the nature of the employee’s position, the nature of the authorization (e.g., is it a “use as needed” authorization), the employee’s limitations with respect to work, whether the limitations are temporary or permanent (for which the use is authorized), and any other relevant factors. The employer must then determine whether the user can be accommodated in the workplace, without creating a new position, while they are authorized to consume marijuana. Accommodation is a complicated process that often requires assistance from medical professionals and may require legal advice.
This article provides a quick overview of some of the main features of marijuana and several of the issues that may arise with respect to its use in the workplace. This is a complicated area, and having policies tailored to your specific workplace is important, so obtain legal advice and ensure that your staff are properly trained to deal with Canada’s new laws.
First published in the March 2018 edition of The Business Advisor.