Oil and gas express concern over marijuana

But lawyers say old rules will still apply with legalized pot
By John Dujay
|Canadian HR Reporter|Last Updated: 11/10/2016

It was an announcement that reverberated beyond Canada’s borders when the federal Liberals announced plans to legalize marijuana last spring.

But Enform, a safety group representing western Canada’s oil and gas industries, has concerns about the move. It recently sent a letter to the federal government’s task force on marijuana legalization, warning that its members work in a highly safety-sensitive industry and allowing them full access to weed is not a wise idea.

“Marijuana use is incompatible with working in a safety-sensitive environment. Therefore, at a minimum, there must be an express prohibition on the use of marijuana in safety-sensitive workplaces,” said Cameron MacGillivray, president and CEO of Enform in Calgary.

“An express prohibition on the possession, storage, use or sale of marijuana on safety-sensitive workplaces or facilities associated with those workplaces must also be included.”

Workers high on marijuana could have a devastating effect on the industry, which deals with highly flammable materials on the job site, said Enform. Many heavy equipment operators transport oil and gas around the country, and many workers drive raw materials through residential areas.

“There are psychomotor and cognitive deficits associated with use of marijuana, including hallucinations, visual disturbances, inability to concentrate, decreased motor control, decreased ability to respond quickly to events and an inability to drive safely,” said Enform.

Not the Wild West

Despite the pending legislation, it will not become a Wild West workplace of rampant stoners, according to legal experts. In fact, the framework is already in place for employers to easily manage the new world.

“Like alcohol in the workplace, they’re going to have to be concerned about any employee who is smoking up during the workday or doing something after lunch,” said Natalie MacDonald, founding partner at Rudner MacDonald in Toronto.

Employers are advised to revise policies and procedures to specifically include the word marijuana and to provide parameters to deal with the issue, she said.

“We want to make sure there is no adverse impact on employers because it’s not a named substance.”

Not much should change, despite the expected full legalization of marijuana, according to Drew Demerse, partner at Roper Greyell in Vancouver.

“Legalization will not permit marijuana use at work or allow workers to be impaired in the workplace,” he said. “As marijuana becomes more readily available, employers will face a challenge in ensuring recreational users are free from the effects of consuming marijuana when they do report to work.”

If it’s legal, no one should show up for work under the influence of any substance, whether it’s marijuana, alcohol or any other product, said Barry Kurtzer, medical director of DriverCheck in Ayr, Ont., a company that provides medical testing of drug and alcohol usage in the workplace.

“You have to create a workplace policy with applicable procedures to address the whole context of the use of any substance that could cause impairment on the job.”

To help firms navigate the new landscape, rewriting corporate policies is a best practice, according to Demerse.

“In the run-up to legalization, they ought to be reviewing or creating a drug and alcohol policy that deals with impairment in the workplace,” he said. “Marijuana use is no different from any other impairing substance.”

But unlike with alcohol, there is no current testing protocol that can accurately assess just how high a person is after consuming marijuana, according to Kurtzer.

“We can’t really identify impairment with the test itself, but at least we can identify that someone is using the product consistently. There is no breathalyzer like we have with alcohol.”

THC (tetrahydrocannabinol) can be detected in the body, he said, but it is impossible to measure the effect on a person’s brain. “There’s no doubt that THC is an impairing chemical and marijuana contains THC.”

Earlier Health Canada guidelines called for people to abstain from driving for four hours if marijuana was smoked, six hours if it was swallowed and eight hours if there were any feelings of euphoria, said Kurtzer.

The guidelines were further revised to say impairment may last as long as 24 hours, which illustrates the real effects of the drug are still not fully understood, he said.

For safety-sensitive workplaces, ensuring workers are impairment-free is already an ongoing concern, said Kurtzer.

“When we take a look at workplace health and safety, we have to expect the fact that certain workers are not going to be medically qualified to do safety-sensitive work if they are using high-concentration THC products,” he said.

“They should have the venue to have someone medically evaluated to determine whether or not marijuana is a contributor, or (if there are) any other problems at hand, including health conditions that may be contributing to someone being impaired on the job.”

Because it is difficult to measure just how impaired someone is, the current standards of observation and investigations still apply when an employee is suspected of being under the influence while at work, said Demerse.

“If the employer were to terminate someone’s employment or discipline them on the basis that they were impaired in the workplace, the employer had better be prepared to prove the employee was impaired. That’s where the challenge comes in.”

The employer has an “absolute obligation” to ensure no impaired workers are on the job, and that any worker can be removed from the workplace until he isn’t impaired.

But in a labour arbitration or a civil case, the employer’s burden of proof is a balance of probabilities that an employee was impaired and reasonable doubt does not apply, as in a criminal case, he said.

The question of how much THC in the system is too much will have to be answered before a standard such as the blood alcohol level of 0.08 is implemented for a marijuana high, according to Demerse.

“If we can test for present impairment, society in general, the criminal justice system or labour arbitrators will have to grapple with (how) the level of THC content in a person’s body equates to impairment.”

The issue of impairment includes more than just marijuana or booze and should also be addressed in a larger conversation, according to Dave Earle, director of human resource services and government relations for the Construction Labour Relations Association of B.C.

“We are dealing with substance use and when we lose focus on that, we are not going to do the job that we need to do,” he said.

“Any substance that is a mind-altering substance causes some level of effect.”

There is little research available on what level of THC causes what effect on a worker and how much is tolerable in the workplace, said Earle.

 “We’re really operating from a place of ignorance,” he said. “Marijuana doesn’t really have physical side effects. You can walk a straight line — giggling and eating your Cheetos — but you can walk a straight line.

“There is no way to detect physical impairment; it is by definition a cognitive impairment substance and that can be very difficult to tease out.”

As well, the current state of recreational marijuana in Canada is highly unregulated, said Earle.

“When you go out and spark a joint, you have absolutely no idea of the concentration, of the strain, of the effect, of the amount; you’ve got nothing.”

In B.C., the law already requires workplaces to manage impairment, which includes non-substance items such as fatigue, stress or other mental health issues.

“(An employer’s) job is not to seek out the person smelling like marijuana in the workplace, your job is to find a person whose head isn’t in the game, who isn’t working safely,” said Earle. “The issue isn’t testing, the issue is the person not being right.”

The employer must make it clear to the employees they must be sober when carrying out duties and responsibilities — regardless of whether or not it’s alcohol or marijuana or any type of drug, said MacDonald. 

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