Is Your Business Legal-Cannabis Ready?

Cannabis will become legal in Canada on October 17, 2018 and many employers are feeling wary. As Dr. Andrea Furlan of the Institute for Work & Health (IWH) has pointed out, marijuana research is a very new field. There has been little research on the effects of cannabis use in proportion to dosage or user tolerance, and there are currently no published studies examining the legalization and impact of recreational marijuana in the workplace.

Not shockingly, many Canadian employers aren’t sure how to contend with the soon-to-be formerly illegal substance. It’s unclear how cannabis use might affect the workplace. A recent study at the National Academies of Science, Engineering & Medicines in Washington, DC, found that cannabis use increased the chance for a motor vehicle accident, and such research is often extrapolated to apply to the workforce. However, researchers aren’t even sure how marijuana affects driving. The only consistency amongst the research is that reaction times are slower so people drive slower. There is insufficient evidence to support or refute any kind of association between cannabis use and occupational accidents.

Many businesses have looked to the government to find clarifications and set boundaries. Although the proposed Non-Smoker’s Health Act would eliminate smoking and vaping in federally regulated places, there is still a great deal of haze to deal with. Standards for random drug testing are incredibly high and extremely contentious, but with marijuana in particular, testing is quite difficult. Typical testing methods (urine samples and saliva swabs) are likely to result in false (undetected) negatives. Marijuana may also remain in an individual’s system for up to five days causing positive test results from a weekend party without being impaired in the workplace itself come Monday. With no research to support the extent cannabis usage effects workplace safety, such testing is not likely to stand up in court.

So how are employers to contend with this new issue? As Health Canada has stated—impairment in the workplace is not a new issue and it is not limited to cannabis. Therefore, employers would be best served by adapting existing policies to manage all substances: legal, illegal, prescribed and non-prescribed. If the business does not have an existing HR or Substance Management policy, a very common fact across all industries, this is the perfect time for employers to work with an HR expert to create and implement a policy relevant to their operations.

Employers have a duty to accommodate medicinal marijuana as required by provincial and federal human rights legislations. Thus, companies should examine their current policies for disabled individuals who use medical drug prescriptions to also address medicinal marijuana usage. These suitable workplace accommodations do not negate the same smoke-free laws that apply to cigarettes, and do not entitle an employee to be impaired at work. Likewise, employers have the right to set rules for non-medicinal marijuana use in the workplace, similar to restrictions on alcohol. For instance, employers may prohibit the use of marijuana at work or during working hours. Furthermore, rules regarding non-medical use of marijuana may be enforced through the application of the employer’s progressive discipline policy.

Ultimately, as researchers, like those at the IWH, work to measure the current magnitude of cannabis consumption at work, reasons for workplace use, perceptions of its effects on work and availability in the workplace, they may be able one to one day identify an accurate measure of impairment. Until then, employers are still well equipped to wait for the smoke to clear simply by adhering to the original motto—business (and policies) as usual.

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