What Canadian Employers Should Know About Legalized Cannabis Use

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Cannabis legalization made massive headlines in Canada when it officially came into effect on October 17, 2018. Voted the biggest business story of the year, its ripple effects are being felt in just about every corner of Canadian society, from opening new opportunities for entrepreneurs and governments to creating new policy challenges in transportation and healthcare.

It’s also causing confusion in the workplace — and many employers are already feeling the pressure. Employers’ concerns generally fall into one of four areas:

●      Workplace safety, including the use of equipment and vehicles

●      Work performance, including attendance, fitness for duty and impairment on the job

●      Disciplinary matters, including performance issues and termination

●      Accommodation for employees using medically-prescribed cannabis

These concerns are legitimate. A 2017 survey of over 650 Human Resources Professionals Association members found that 45% do not believe their current workplace policies address potential new issues arising from the legalization of marijuana.

However, with proper planning, focus, and communication, Canadian employers can create a workplace environment that remains safe and productive.

Here are three key things for employers to keep in mind as they navigate this new landscape.

Ensure a safe work environment

With cannabis use on the rise since legalization, employers must remember the golden rule of this country’s health and safety laws: it’s your duty to keep the workplace safe.

A good starting point is education. Provide your employees with general information about the drug’s various strains, the levels of THC (the intoxicating chemical compound in cannabis) in different products, the difference between smoking vs. consuming edibles, medical applications of cannabis, and the risks of impairment.

Even more importantly, you should provide information about your workplace rules surrounding cannabis. But making those rules can admittedly get complicated. A major 2017 U.S. study concluded that there is substantial evidence to link cannabis and motor vehicle crashes. However, there is “no or insufficient evidence to support or refute” a direct link between cannabis use and occupational accidents.

While that conclusion may seem to fly in the face of common sense, the lack of scientific consensus has led to employers taking different approaches, even in safety-critical fields.  For example, there is plenty of variety in the guidelines provided to employees by different Canadian police forces. Vancouver police officers don’t face any restrictions on the use of marijuana outside of work, as long as they are fit to serve for their shift. Meanwhile, the Royal Canadian Mounted Police has effectively banned its officers from smoking it altogether. And then there are employers in the middle like the Toronto Police Service, which bans officers from using the drug within 28 days of reporting for duty.

Those looking for guidance may want to refer to the Occupational and Environmental Medical Association of Canada. The group recommends that until definitive evidence is available, it is best to allow 24 hours to pass after using cannabis before operating motor vehicles or equipment or performing other safety-sensitive tasks.

Keep impairment out of the workplace

Unlike alcohol, there is no reliable way to test for cannabis impairment. Although there are tests to gauge THC levels in the body, this is not the same as measuring someone’s physical and mental condition. The Mayo Clinic says THC can still show up in the urine three days after a single use and even 30 days after last use for heavier cannabis users — long after the buzz has worn off.

Furthermore, testing for drugs and alcohol in the workplace is extremely contentious at the best of times. Canadian rules set a tough standard for balancing privacy rights with workplace safety, which is why it’s only allowed on a case-by-case basis under specific circumstances.

For the vast majority of employers, the best thing to do is to rely on your powers of observation. Train managers to make a judgement on an employee’s ability to do their job by looking for symptoms of impairment such as personality changes, sleepiness, and slow reaction times.

As the Canadian Centre for Occupational Health and Safety recommends, the most important question to ask yourself is whether you see a change in behavior or cognitive ability that poses an injury risk either to that person or others in the work environment.  

It’s your right to require employees to work sober and safely.

Remember your duty to accommodate

Ah, yes — there is always a “but.” Some employees may have a legitimate medical requirement for cannabis that you will have to find a way to manage while still fulfilling your duty to keep the workplace safe.

As an employer, you have a “duty to accommodate.” This means you must provide accommodation for employees who use medically-prescribed cannabis, just as you would make arrangements for any employee with a disability. However, that person’s accommodation cannot impair or disrupt any of your other employees, meaning that you’ll probably need a designated room if that person needs to use cannabis during the workday.

While this may seem like a complicated situation, it doesn’t have to be. The Canadian Human Rights Commission says accommodation should a collaborative process with both parties approaching the issue in a respectful and timely manner. It also recommends that you put your accommodation plan in writing and have all parties sign it. This plan should identify expectations and accommodation measures, as well as designate a person whom the employee can go to with questions or concerns.

Be a responsible, productive employer

Running a business means balancing a huge number of moving parts, from customer management to financial management to human resources management. Keeping your people healthy, happy and productive is a big part of that battle.

There’s no doubt that cannabis legalization is a major change in Canadian society that adds a layer of complexity to the workplace. But you can adapt to this new landscape by remembering two key points: keep things respectful and keep things safe.

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