Are employers ready?

Legal marijuana is raising many questions, but the answers may not be that difficult
By Marcel Vander Wier
|Canadian HR Reporter|Last Updated: 08/09/2018
Marijuana
Despite the hype and confusion around marijuana, employers can always expect employees to be sober at work, say experts. Credit: Shawn Goldberg (Shutterstock)

The legalization of recreational marijuana through Bill C-45, Cannabis Act, is set to occur this summer in Canada. But are employers ready for what comes next?

The implications for the workplace have HR practitioners around the country scrambling to update drug and alcohol policies ahead of the impending legislation, according to Jason Fleming, director of HR at MedReleaf in Markham, Ont.

“It’s safe to say it’s definitely sinking in,” he said. “I think there’s a bit of a clock set for a lot of workforces and heads of HR, saying that ‘My priority to start off 2018 is to tackle this and build a plan.’”

“Cannabis is by far the most misunderstood substance that I’ve ever encountered in the workplace. It’s misunderstood, but what’s even worse is a lot of people are writing policies based on inaccurate or outdated information. It’s such a challenging topic that a lot of people, rather than dive into it, take that de facto position of ‘Well, this is too complicated to touch.’”

The issue is top of mind for many employers in Atlantic Canada, said Neil Coombs, senior consultant at Higher Talent in St. John’s, and president of CPHR Newfoundland and Labrador.

“What the real concern is for a lot of people is that there’s so much uncertainty around where we’re going to go… (and) we’re staring down the barrel of an implied July 1 deadline,” he said.

“There’s a need to address marijuana in the workplace, particularly with our clients who are in a safety-sensitive environment, such as oil and gas.”

Employer concerns

Workplace concerns continue to centre on the absence of a definitive impairment test and a lack of product knowledge, which leads to gaps when building policy, said Fleming.

“The biggest concerns that I hear are, first of all, about people in safety-sensitive jobs being impaired,” he said.

While technological options to definitively identify cannabis impairment are in the works, the current methodology for employers is use of a reasonable suspicion impairment test.

“No employer will ever have to tolerate impairment at work, just like now with alcohol or heavy- duty sedatives,” said Fleming.

“A lot of people have the tools to manage this. They’re just not focusing on that because they think they have to have a whole new approach when, in reality, they can likely draw upon their experience with other areas and answer 90 per cent of their own questions.”

Lack of education is overcomplicating the process, he said.

“It’s important to distinguish between medical and recreational cannabis,” said Fleming. “Medical cannabis is in the same category as Tylenol 3s or sleeping pills in the sense that you have to accommodate medical cannabis use in the workplace.”

“These decisions don’t necessarily have to be complicated. It’s actually quite simple, but if we fail to understand the difference between medical and recreational cannabis and the different products, it can become very overwhelming.”

If an employee does require medical cannabis for treatment, an employer in a safety-sensitive sector can accommodate with several options, including offering a medical leave or alternative work position, he said.

Employers should also realize that medicinal marijuana does not have to be ingested via smoke, but can be consumed in oils or capsules — much more palatable in the workplace, said Fleming.

Legal considerations

Medical cannabis is already legal, with 200,000 Canadians being prescribed the drug — a number that continues to grow, according to Alison McMahon, CEO of Cannabis at Work in Edmonton.

“That increase in patient numbers means that there’s more and more folks that are coming to work and disclosing that they have a medical cannabis prescription,” she said.

Defining impairment remains a grey area, though employers can write policy to a more manageable and defensible cut-off limit, said McMahon.

The typical cut-off limit for a urine test is 50 nanograms of THC (tetrahydrocannabinol — a chemical compound within cannabis that results in a euphoric high) per millilitre, or five nanograms per millilitre for a saliva test, she said.

“Right now, this type of approach… is really the only enforcement tool we have,” said McMahon.

“It’s a challenge, but there’s definitely a way to get around it. From my perspective, a company should not write their policy to impairment because it’s essentially a losing battle.”

Employers also need to be aware of accommodation requirements around medical marijuana, according to Robert Weir, partner at Borden Ladner Gervais in Toronto.

“There is a legal risk around having blanket, zero-tolerance policies on the use or consumption of cannabis or cannabis products that are prescribed for medicinal reasons,” he said.

However, the rules around recreational use in a workplace context are much simpler, said Weir.

“You can prohibit most everybody from consuming marijuana or alcohol or any other kind of drug while they’re working,” he said. “You can expect your employees to be sober while they’re working. There’s been a lot of confusion and hype about this.”

“A prohibition about employees coming to work high is fair, in any position — safety-sensitive or not.”

Employees in safety-sensitive positions likely already have a drug-testing policy in place for reasonable suspicion or cause, though testing procedures remain unreliable in some facets, such as determining when cannabis was consumed, said Weir.

“It is a bit of a conundrum, but it’s a conundrum that exists today, because people smoke marijuana at work, whether it’s legal or not.”

As for the likely variation in regulations between provinces and territories, employers need not worry, he said.

“Fundamentally, the rules for employers will be the same in each province,” said Weir. “That is, you can prohibit people from smoking marijuana at work, subject to the human rights obligations if people are prescribed medicinal marijuana.”

Advice for HR

HR professionals need to become educated on the drug, and understand the duty to accommodate, said McMahon.

“Ultimately, as HR professionals, we’ve dealt with this before in terms of managing different substances or disability management programs,” she said. “It’s a bit simpler than people realize. There has to be a level of understanding around cannabis and what’s happening with the regulatory environment in order to feel comfortable that they’re writing the policy appropriately.”

From there, HR needs to ensure the updated policy is comprehensive enough to capture the new world of legal marijuana, said McMahon.

“The drug and alcohol policy has to be able to restrict recreational substances, completely prohibit illegal substances, but there also has to be room to allow for accommodation of legal substances, like medical cannabis,” she said.

Not only does HR need to establish policy, but they should also be proactively educating supervisors and employees on best practices for handling expectations and problematic scenarios, said McMahon.

“In my opinion, this work should be done now,” she said. “This is kind of prime time.”

Gaining knowledge on the difference between THC and CBD (cannabidiol — a cannabis compound offering medical benefits without making the user high), or different medical conditions in which medical cannabis can be prescribed is necessary, said Fleming.

Additionally, engaging occupational therapists and a legal team when drafting policy is beneficial, he said.

“It would be advisable to involve a cross-functional team in the policy development,” said Fleming. “Developing the policy is half the battle. The next element focuses more on deployment of the policy and training the workforce as early as possible.”

But for many employers, marijuana legalization may not require an immediate policy change, according to Weir. “You have to step back, take a deep breath… and assess if it’s even an issue.”

Employers should keep a close eye on legislation and testing technology over the coming years, said Coombs, noting “there’s a lot of script that’s left to be written.”

“The employer’s responsibility is, first and foremost, to make sure they have clear, written policies that consider both legal drugs and prescription drugs — anything that can affect performance,” he said. “The policies need to be written so that employees and employers both understand where to set the parameters.”

HR practitioners should be absorbing as much information as they can on this topic — a challenge that could pay off in the future, according to Coombs.

“As Canada is breaking new ground with this law, I think this is an opportunity for HR professionals in Canada to take a leadership position (globally),” he said. “We’re going to be the experts when other countries follow.”


Cannabis use in Canada

More than one-quarter (28 per cent) of Canadians consider smoking marijuana occasionally for non-medical purposes to be completely acceptable socially, according to a Health Canada survey of 9,215 citizens, age 16 and up, conducted in 2017.

• 64 per cent of respondents who reported using cannabis in the past year believe drug usage could be habit forming, compared to 80 per cent of non-users.

• 94 per cent of respondents who reported using cannabis in the past 12 months smoked it; 34 per cent consumed it in food; 20 per cent used a vape pen; and 14 per cent used a vaporizer.

• 18 per cent of respondents who used cannabis in the past 12 months consumed it daily; more than half of respondents (55 per cent) used it three days or less per month.

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