| Employer Considerations in a Changing Landscape Inclusive of Cannabis

Employer Considerations in a Changing Landscape Inclusive of Cannabis

Posted by Gordon R. Hart

Aug 8th, 2019

It is important to recognize that while medical cannabis has been legal since 2001, the issue of recreational access (effective October 2018) and use brings with it uncertainty for both employees and employers. While employers grapple with the issues surrounding cannabis, it is important that human resource policies and employee communications adequately cover the emerging issues. Due to the increased awareness caused by recreational cannabis and the cannabis producer’s research on health benefits, employers are faced with the issues of both legal and illegal substance use. To help understand we will break down the issues.

What is legal?

The rules differ from province to province but generally,

• Legal age for cannabis use is 19 (18 in Alberta and Quebec)

• Consumers can purchase fresh or dried cannabis, cannabis oil, seeds and plants for cultivation

• Edibles will be permitted for legal sale by the end of the year

• Consumers of legal age can grow up to 4 cannabis plans in a single home

• Consumers can possess and share (with other legal age adults) up to 30 grams

• Consumption is prohibited in most public places

Safe workplace

The onus is on employers to develop and implement workplace policies to control cannabis use, as they can no longer rely on the argument that it is an illegal substance. It is important to recognize that the underlying issues that recreational cannabis use may bring to the workplace are not new. Employers have been dealing with the implications of substance abuse (alcohol, cocaine, opioid and amphetamine use) for years. Although recreational cannabis is legal to access and use, recreational (and medical) cannabis in the workplace should be subject to workplace policies and require employee support like any other substance that can cause impairment. Legal does not mean acceptable in the workplace. There is no requirement for employers to accommodate the use of recreational cannabis. Employees who chose to use recreational cannabis need to consider the impact of this use on their fitness for duty in the workplace. Employers should review their existing workplace policies and procedures to ensure they are prepared for potential issues which may arise pursuant to legalization of recreational cannabis. For example, a policy that relies on a prohibition against “illegal drugs” in the workplace may need revision to ensure it accurately addresses cannabis once it is legal. Further, the definition of “workplace” may also need to be examined, to reflect employees who drive company vehicles, work remotely, or who do not report to a work location.

Accommodation for medical cannabis

For employers there is an established duty to accommodate, up to the point of undue hardship, and employees use of medical cannabis when it has been authorized by a medical practitioner to treat an illness or disability.

Adopting, communicating and following a proper drug and alcohol policy will give employers a better chance of demonstrating they have met the requirements to accommodate to the point of undue hardship. Workplace policies should require employees to inform the employer of medical cannabis usage and to request accommodation.

Any safety standard (including any zero tolerance policy) must satisfy the following test:

1. The standard must be rationally connected to the performance of the job in question;

2. The standard must be adopted in an honest and good faith belief that it is necessary; and

3. The standard must be reasonably necessary to accomplish the work - related purpose (i.e. keeping at-risk employees safe).

Once informed of an employee’s use of medical cannabis, the employer may request medical documentation that speaks to the employee’s ability to safely carry out assigned duties. This is the same approach which should be in place for the use of any prescribed medication (such as opiates for pain) that is mood-altering or has an impact on the individual’s capacity to fully or safely complete their duties.

Testing for Impairment

There is no consensus on safe limits for consuming cannabis. Unlike with alcohol, there is no general agreement on what constitutes ‘impairment’. Further, it is possible for the active ingredient in cannabis (THC) to be detectible in an employee’s system many days after use.

Generally, due to the potential to intrude on an employee’s privacy, drug and alcohol testing will only be justified where there are health and safety concerns in dangerous work environments in which people are doing safety-sensitive work.

It is generally acceptable for employers to require testing following a workplace incident or accident where impairment is suspected. Post-incident or ‘reasonable cause’ testing is not to be confused with ‘random’ testing.

Substance Abuse

With the legalization of recreational cannabis, more employees may be at risk of abusing or becoming dependent. Absenteeism, lost productivity, accidents, turnover, recruitment and training are only a few of the costs organizations might bear if substance abuse is not identified and treated. Additionally, employers remain responsible for the safety of all employees in the workplace, so it is even more important than ever, to have clear substance abuse policies and processes, along with supportive employee-focused programs.

Employees may require access to addiction treatment programs, post-treatment recovery programs and other programs focusing on awareness and skill development related to psychological, emotional and situational triggers that lead to relapse. Employers will need to ensure availability of programs supporting recovery, accommodation and return to work. Motivated employees may seek out confidential support through an Employee and Family Assistance Program (EFAP). There are also options that involve employer referral and monitoring, which can be important tools when an employee is not motivated to make changes and the workplace is impacted by the employee’s substance use.

In Conclusion

There is no absolute right to use medical marijuana in or around the workplace – accommodation remains a two-way street.

Employers should establish clear policies on both prescription drug use (including medical marijuana) and workplace accommodation.

Employers wishing to limit the potential risks of medical marijuana should make their policies clear and known, including through workplace training where appropriate, thus putting the onus on employees to seek appropriate accommodation.

Employers should review the tools necessary to offer support to employees who require support for their substance abuse.