With or without weed?
As legalization arrives, some safety-sensitive employers aren’t just banning cannabis from the workplace, they’re banning use by employees altogether
Oct 15, 2018
Cannabis can often be detectable in someone’s system for a long time after use, and after the impairing effects have worn off. REUTERS/Jaime Saldarriaga
By Jeffrey R. Smith
The long run-up is over and the hour of reckoning is finally here: This week, recreational cannabis is legal across Canada. Of course, this means a lot of coverage here and everywhere else, and for good reason — a lot of people are uncertain about what effect legal cannabis is going to have on both everyday life and workplaces. And for the latter, employers are now starting to take steps to address the new world of widespread weed — and, of course, some of these steps are causing controversy.
Employers for occupations that involve safety-sensitive workplaces or requiring high levels of focus and performance have been wrestling with how to address the increased access employees will have to a substance that is impairing but also has a lot of uncertainty on how impairing it is. Many employers can simply ban employees from using or having cannabis while at the workplace, much like alcohol. And impairment by alcohol is relatively simple to detect, either through testing or observation.
However, cannabis impairment is more difficult to determine — it can affect different people differently and there’s confusion over how long someone can be impaired. Studies have indicated a certain level of impairment can exist not just for hours, but for days. And the drug can often be detectable in someone’s system for a long time after use and after the impairing effects have worn off.
Another complication is determining concentrations of cannabis, which depends on how it’s consumed. Smoking and vaping are probably the most common ways people consume the drug, but “edibles” are popular as well. It will be a little longer before edibles are made available legally, but generally, the impairing component of cannabis is more concentrated in them. So while it may take longer to feel the affects from consuming edibles, once it kicks in it can be more powerful than smoking or vaping. And with legalization likely leading to new users, many people aren’t aware of that fact.
The Calgary police became one of the first safety-sensitive employers to crack down on cannabis use in advance of legalization when it announced a policy of abstinence — all officers qualified to use a handgun that were on active duty would be prohibited from using the drug at any time, whether on duty or off. One reason the Calgary Police Service cited for developing the policy was the existence of studies showing the wide range of ways cannabis can affect the cognitive abilities of different people and how difficult it was to determine the level of impairment, even for self-detection.
The Calgary police announcement was followed by announcements from the RCMP and Toronto police revealing their cannabis policies. Officers for both will be required to abstain from using cannabis for 28 days before reporting for duty — not a complete ban, but except for rare circumstances, it’s pretty much equivalent to one.
Naturally, the unions involved have expressed their displeasure with the policies. It remains to be seen if the policies will be successfully challenged, but these situations may be indication of a legal trend. For many years, there have been legal battles over random drug and alcohol testing in workplaces, particularly safety sensitive-ones. Now there may be fights over the right for employees to use an impairing but legal substance while off-duty — and given the uncertainty over the drug’s impairing effects and the limitations on testing for impairment, it could run just as long and with just as much back-and-forth as the drug testing fight. Stay tuned.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.