Canadian companies worry about hazy rules around legal cannabis

Jan 30, 2018

Without a clear, legal definition of impairment in advance of the legalization of cannabis slated for July of this year, confusion has arisen among workplace policy writers, particularly in sectors that are not classified as “safety-sensitive.” Concern is being raised regarding the potential for decreased productivity and attendance and an increase in safety issues in the average workplace when recreational cannabis becomes the legal norm.

Scott Allinson of the Human Resources Professionals Association, which represents 24,000 members in Canada and abroad, has put together a 25 page report that addresses these issues.
Allinson questions the clarity of provincial limitations regarding impairment and when appropriate testing for cannabis use can legally take place.

“Is it going to be [because of] decreased work performance?” he asks. “Is that going to be a huge issue? Is attendance going to be a big issue? … And then the disciplinary procedures of how to deal with it — (who is) going to be the test case for the first court case?”

Particularly challenging is the task of setting limits for impairment levels while acknowledging recreational use prior to employees arriving at the workplace, and how to measure the effect of cannabis use on job performance.

Currently, there exists no accurate and reliable test for cannabis impairment. While THC, the active ingredient in cannabis, can be detected in urine and saliva, it can also be present in the test subject’s system for up to 30 days after use. Additionally, subjects can test positive for THC after having only been exposed to second-hand smoke.

Sharon Somerville says her family business in Oak Bluff, Manitoba, Somerville Design Homes Ltd., has carefully defined a policy regarding drug and alcohol use, but she is still unsure about assessing impairment and the process of legal termination as a result of impairment.
“You as the employer have no way of knowing if somebody took it half an hour before they left for work that morning or if they took it the night before,” she says.

While the Canadian Union of Public Employees has warned against using the legalization of cannabis as a pathway to institute more aggressive random drug testing policies, and advises employers to use constructive rather than punitive methods to mitigate the predicted impact of the upcoming legalization, employers are continuing to explore options to protect the safety of their workplaces.

“There are policies in place that tell you when it comes to alcohol, you can’t drink — for pilots or for truck drivers, you can’t drink X amount before (a shift),” says Allinson. “What is it for somebody who is consistently a user recreationally? Is that impairing him to do his job as a desk worker?” Scott Allinson, HR Professionals Association

This past December, UNIFOR, which represents 3,000 oilsands workers in northeastern Alberta, won a court injunction against random drug testing by Suncor Energy, with the presiding judge ruling that despite the safety sensitive nature of the work on the various Suncor job sites, employees’ privacy rights are just as important as the safety concerns posed by the company.

But in an office environment with no clear safety-sensitive issues, a drop in productivity due to cannabis use, for example, can be difficult to assess and confirm. The employer would also have to rule out any potential for addiction, which is considered a disability.

Alison McMahon, whose Calgary-based company Cannabis at Work educates employers and helps them comply with changing legislation, has outlined some tell-tale signs of cannabis use, including odour, the subject’s appearance, dilated pupils, or a change in the subject’s ability or focus, and states that even when cannabis is used for medical purposes, “under no circumstances does an employer have to accommodate impairment in the workplace.”

Though it’s already accepted that the recreational use of cannabis will increase after July’s legalization, it’s hard to determine by exactly how much, and whether or not it will also increase in the workplace.
Nancy Carnide, a post-doctoral fellow at the Institute for Work and Health, says there isn’t a lot of control group information regarding cannabis use and workplace incidents, as data is usually only collected after accidents take place.

“We don’t have a sense right now to what degree workers are using cannabis in the workplace, or just before work,” she says. “We don’t understand what their perceptions and attitudes are towards workplace use, what their intentions are and whether they understand what their obligations are in the workplace.”