The Changing State of Marijuana

Aug 4, 2017

The Canadian federal government has released their final report on the legalization and regulation of cannabis. The report contains detailed information concerning all aspects of legalization and regulation of cannabis including the production, distribution and sale of the substance. As the legalization of cannabis approaches, more questions surrounding impairment and workplace testing policies are being broached.

The report highlights the tough, current issue of how to deal with impaired driving and how to best monitor the use of marijuana fairly. This will continue to be a challenge that will have to be addressed by law enforcement and workplaces alike. The report notes that cannabis does impair a person’s ability to operate a motor vehicle and, in combination with alcohol, can be very dangerous. Testing for THC (tetrahydrocannabinol, the chemical responsible for most of marijuana’s psychological effects) is difficult as factors like potency of the cannabis and how the body metabolizes the substance can affect results. The report does indicate that “roadside testing tools to measure THC presence in driver’s system are in development.” 1 As the legalization of cannabis approaches, these testing procedures need to be finalized as access to the substance will likely increase impaired driving. For example, the RCMP is currently testing different methods of roadside testing to try and find a quantitative solution to add to the visual assessment. Police agencies currently use roadside visual assessments because there is still no other effective way to assess impairment from cannabis or other substances.

“Most experts agreed that, despite these uncertainties, setting a per se limit for THC blood levels, which established a universally applicable level deemed to be consistent with significant psychomotor impairment and increased risk of crash involvement, would be a useful tool to deter cannabis-impaired driving.” 2

Currently there is no specific threshold limit that has been established in Canada that definitively proves impairment. This makes it very difficult for law enforcement and employers to define whether or not a person is impaired.

“How long [THC] stays in the body, and how long impairment will last, depends on many factors,” says Hoorfar in an interview with P&I. “[It depends on] gender, metabolic rate of the body…it depends on the ethnicity, it depends on the diet,” she says. “It depends when you smoke, it depends not just on smoking but how you consume.” 3

The final report released by the federal government is very detailed, however, there is a clear gap in regards to defining workplace impairment. The report doesn’t provide any information on how to address the legalization of cannabis and its effect on workplace safety. Workplaces will likely be dealing with an increase in cannabis impairment and have to prepare policies on how they are going to address the issue. Some industries have requested government action as the legalization of cannabis is a potential risk to safety sensitive industries. “Canada’s oil and gas industry, for one, wants the federal government to block marijuana use in workplaces where safety is a factor, like, well, oil and gas facilities” 4. As employers don’t have a way of measuring cannabis impairment at this time zero tolerance programs will likely be the preferred standard in workplaces with employees in safety-sensitive positions.

“Maybe during a coffee break where employees are allowed to go to a smoking zone and they can fire up a joint now,” Petroleum Services Association of Canada president Mark Salkeld said. “They’re not allowed to open a beer, but these are things we want to have a conversation about and make sure there are clear policies.” 5

The government has yet to really address this issue in any form of regulation or even guide for employers, showing a deliberate stance on non-regulation of workplaces and leaving employers to deal with it on their own.

There are other workplaces, however, without high safety risks which are rightfully concerned about employees being impaired at work. The legalization of cannabis will affect all workplaces and the topic will need to be addressed openly between employers and employees just as they discuss the policies regarding tobacco breaks and the use of alcohol at lunch. How workplaces deal with cannabis use is going to be industry dependent, however all workplaces should have some policy on substance use in the workplace and all employees should be made aware of that policy.

For many employers, medical marijuana use has already caused discussion in the workplace as it is becoming more and more common for employees to have been prescribed marijuana which, like prescribed opioid painkillers, may affect safety and productivity in the workplace. Issues of safety and productivity are going to become an increasing issue after legalization for all employers in Canada. Although productivity is important employers have an obligation to accommodate those with legitimate medical conditions.

“For employers, the prescribed use of medical marijuana raises issues of accommodation under the British Columbia Human Rights Code. Under this Code, employers are required to accommodate (to the point of “undue hardship”) employees with a physical or mental disability. The use by an employee of marijuana under a medical prescription should therefore be treated by employers in the same way as use in the workplace of other prescription medications. However, the obligation to accommodate the employee’s use of medical marijuana in the workplace must be balanced against other legitimate workplace concerns.” 6

The line between accommodation and workplace safety can often be a difficult one to navigate. Ensuring that you have clear policies and open lines of communication with employees regarding prescriptions that could cause impairment will make certain that both parties are aware of the risks and the correct course of action.

In short, the legalization of cannabis will impact all workplaces, in all industries, and will require employers to take action by updating workplace policies and educating current and new employees on these policies. Employers in safety sensitive industries with zero tolerance policies will have to be prepared for push back from employees. Employers with zero tolerance policies may also see effects when hiring new employees as many will likely be deterred by stricter workplace policies that address the use of marijuana. There is no doubt that the balance between human rights and the employer’s prerogative to keep their workplaces safe will continue to be at odds when legalization of cannabis occurs. Count on DATAC to keep you in the loop and report on changes as they occur.


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