Canada: Cannabis In The Workplace: The New Wild West

Last Updated: November 26 2018
Article by Soma Ray‐Ellis

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.

    To view the full article click here

    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.

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