What employers need to do before recreational marijuana use becomes legal in 2018
On Christmas Eve 2009, five Metron Construction Corporation workers were making repairs to the exterior of a high-rise apartment building in Etobicoke, Ont. When the swing stage they stood on suddenly collapsed, four of the workers fell to their deaths and one sustained serious injuries.
The employer was eventually fined $750,000 and the project manager received a 3.5-year jail sentence, in part because of a failure to prevent employees from working under the influence of marijuana, says Norm Keith, partner at Fasken Martineau in Toronto. Three of the workers had marijuana in their systems at a level consistent with recent ingestion.
With Canada just one year away from the likely legalization of recreational marijuana use, that case is especially relevant.
“Changes in law are representative of changing public attitudes,” says Keith, “But pending law also influences those changes in attitudes.” He adds, “The general consensus is that there’s going to be a higher level of use, once it’s legalized.”
That potential uptick may add to an already existing challenge: A recent Fasken Martineau survey of employers across the country found more than half of respondents suspected a worker was under the influence of alcohol and/or non-prescription drugs while at work in the last 12 months.
Employer responsibility
The Metron Construction decision will likely play a role in employers’ decisions around handling the potential of increased drug use in the workplace. “That case sends a clear message that employers must take steps, especially in higher-risk, safety-sensitive jobs and workplaces, to ensure that nobody is under the influence of drugs or alcohol.”
In the absence of much regulation on the issue, responsibility rests with the employer. “From a safety perspective, no regulators in Canada have given any direction on how to deal with this issue,” says Keith. “So basically, if there’s a safety inspection (or an accident), regulators are holding employers accountable if employees are under the influence.” He adds, “Even if employers have a clear policy against drug use in the workplace, if there’s an accident and drugs were involved, the employer is going to be blamed.”
Policy, for everyone’s protection
First, says Keith, every organization needs to have a written and well-publicized policy on the subject that will include clear statements about what’s allowed or not allowed, and what will be done if the policy is violated.
Most companies aren’t starting from zero on this; they likely have a written policy about the use of alcohol and other drugs. “I don’t think policy about marijuana use needs to be treated all that differently from any existing policy,” says Carola Mittag of Workplace Safety Group. “It doesn’t need to be over and above what is required in terms of alcohol use.”
Still, it’s a good opportunity to make sure the entire policy will protect both workers and the organization. “Have it reviewed by legal counsel familiar with the subject and make sure it’s legally compliant,” says Keith. Unlike U.S. organizations, only a very small handful of Canadian organizations have the legal green light to institute random drug testing of employees, done generally when public safety is at direct risk. For most organizations, testing can only happen in other, certain conditions: “An organization can test for drug or alcohol use if there’s evidence or reasonable cause that someone’s using a substance before or at work, or if there’s an incident or accident,” says Keith.
Education and training
Keith suggests the next step is ensuring workers are educated on the issue. “Not everyone realizes just how dangerous impairment on the job can be,” says Keith. “So offer education, but not in a moralizing way, and not by threatening legal action. You just need something that says being impaired at work is potentially dangerous for you, your co-worker and even the public, depending on the kind of job you have. You have to state that you require a clean, sober workplace where every worker is fit for duty.”
Frontline managers, in particular, need to understand how to recognize and react to signs of impairment. “At the very least, set up a mandatory education program for those managers,” says Mittag, who suggests an online course as flexible learning option.
At the moment, any educational programs are up to the employer to track down or design, and then implement. “The U.S. has certification for supervisors and managers to detect when people are under the influence, and the Ontario Provincial Police and other local police forces have a drug recognition program, but there’s no national standard in Canada for that kind of training,” says Keith. “Employers are going to have to look to providers of that training on their own, so they can learn to objectively detect if workers are under the influence.”
Offering help and when to discipline
Keith recommends that an organization’s policy should encourage employees to self-identify if they have an addiction or dependency, and would like a hand in dealing with it. Then, adds Keith, an organization should offer an employee assistance program or an addiction program to help. This not only helps address the problem of employees under the influence in safety-sensitive positions, it also offers a safeguard for employers.
An effective protective policy, says Keith, begins with something that tells employees, “If you don’t follow these rules and respect other people’s health and safety, you’re not going to be welcome here. On the other hand, if you have a problem, tell us and we’ll help you.” Then, says Keith, it should indicate, “If you know we have a zero tolerance for being under the influence of any kind of substance that’s going to affect your fitness for duty, and you don’t self-disclose or stop, then if you have a significant incident or for reasonable cause we find you under the influence, then we reserve our right to discipline up to and including discharge.”
Even if there’s been substance abuse on the job by a worker not in a safety sensitive position, the same rules should apply. “In that case, you still have the same policy but you’re going to be restricted on your rights to test,” says Keith. “But if people aren’t functioning at work — even if they work in marketing rather than a factory floor — then you have a right to send the worker home without pay.” He adds, “They were under the influence, contrary to policy, and if there are too many incidents then it’s insubordination.” The challenge, Keith adds, is the inability to test and confirm a worker’s impairment. “If the worker has a union, they may file a grievance, and if they’re not unionized, they might sue for wrongful dismissal.”
Sending a message over the next several months
Keith admits it may sound harsh, but he recommends employers involve the police when there are incidents involving marijuana use in the workplace over the course of the next year. “Until the law changes, it’s not only against policy, it’s a crime. You can go to jail for up to five years for marijuana possession,” says Keith. “It sends a message, and not one that’s about moralizing or about whether or not you voted Liberal in the last election and support the incoming legislation. The message is that you value the life and safety of your workers, your customers and maybe the public, depending on what you do.”
