This article has been provided by Cissy Pau, Clear HR Consulting
Practical Tips for BC Employers Now That Marijuana Is Legalized in Canada
As of October 17, 2018, marijuana is now legalized in Canada. Whether you support this move or are strictly anti-cannabis, it’s now time for you, as an employer, to make sure your company has the policies and procedures in place to deal with the potential impact on your workplace.
We’ve been telling employers for months that just because cannabis will be legalized, doesn’t mean that you need to let your employees use marijuana whenever they want.
Practically speaking, marijuana can be treated like alcohol, prescription drugs or any other controlled substance that could cause impairment. Alcohol is legal but employees can’t drink whenever they wish at work. You set policies that are appropriate for your workplace, keeping in mind the health and safety of your staff.
When updating your company policies for marijuana, here are some considerations to keep in mind:
1. Fit to Work – The priority for all companies should be that employees attend work, fit to work. If they are impaired and are not fit to work, for any reason, they should not be working or should be temporarily removed from their position. Whether the impairment is caused by drug or alcohol use, illness or over-tiredness, your company policy should clearly state that employees need to be fit to work. Focus on the issue of impairment rather than on marijuana use.
2. Safety-Sensitive Positions – Safety-sensitive positions are those which require focused attention and where performance of that function can affect the safety of the employee or others, while failure to perform the job well can cause harm or injury. Where safety-sensitive positions exist, employers need to ensure that their health and safety policies and drug/alcohol policies reflect a zero tolerance for drug and/or alcohol use while working and, if reasonable and necessary, prior to working.
Some organizations, like the RCMP, have caused an uproar by implementing a policy that bars cannabis use by members within 28 days of a shift. Other organizations are being less restrictive but still reflect the fact that marijuana can linger in your blood for some time after consuming the drug.
3. Disclosure & Accommodation – If you plan to implement a zero-tolerance policy for using drugs at work, it is also worthwhile to communicate what the process is should the employee need any sort of accommodation for their drug use (e.g. if they have a drug addiction) or if they need medical marijuana to manage a health issue. Included in your policy could be the requirement for an employee to disclose any issues related to drug use or drug dependency, prior to their being a problem or incident. The landmark Supreme Court of Canada decision in Stewart v Elk Valley Coal Corp (2017 SCC 30) reinforces the right of employers to take proactive measures through their drug and alcohol policies to protect worker safety.
4. Testing for Impairment – Unlike alcohol where blood alcohol levels correlate to impairment, there is not yet an effective and reliable way to measure impairment due to marijuana use. Until such time that a reliable and valid test is developed to measure impairment, employers need to be careful about drug testing. Random or mandatory drug testing is only permissible under certain limited circumstances and, for marijuana, will only show the drug in one’s system, but will not show impairment. Make sure your policies reflect how and when drug testing will be used, if at all.
5. Multiple Forms of Cannabis – Since cannabis can come in many forms and can be consumed in many ways, be clear on the type of cannabis use you are referring to in your company’s policies. For example, does your policy just cover employees smoking marijuana? What about if they are consuming edible marijuana products, or use cannabis-based oils or tinctures?
Also, with there being two natural compounds found in cannabis, THC, which is the main psychoactive compound in marijuana which causes the “high”, and CBD, a non-psychoactive compound which does not produce the high, you need to be prepared to answer employees’ questions about using cannabis without THC.
Our recommendation is to focus on the impairment aspect of marijuana use, rather than focusing on all the different forms of cannabis and their various components.
Our best piece of advice for most employers is to be practical and reasonable and not over-react to the legalization of cannabis. While there are certain workplaces where strict rules and policies are absolutely required, the typical workplace or office environment does not need to be “over-policied”.
For employees seeking treatment with medical marijuana, we suggest treating these employee requests similar to how you treat employees who require prescription drugs. Gather further information on when and what doses of drugs are required, what side effects there may be, how long the prescribed drug will be required, what accommodation would be required, and any potential impairment there would be to using the drug.
For recreational marijuana use, we suggest treating this similar to alcohol use. Communicate when consumption is permitted (e.g. personal time only) and not permitted (e.g. during work hours or work functions outside of regular hours) and the requirement that employees need to be free from the impairing effects of any drug or alcohol when they are at work. Being legalized doesn’t mean marijuana can be used at the employee’s sole discretion.
As workplaces adjust to the legalization of marijuana in Canada, we are positive that the hype and worry will dissipate and that best practices will emerge that we can all learn from.
If you’d like to discuss this topic in greater detail or have any questions, please reach out to a member of your Arbutus Financial Team.