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.
- Presence of substance ≠
impairment.
- 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:
- "for cause" testing of individual employees where there are reasonable grounds, post‐incident, or as part of a return to work agreement .
- 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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