As Canada prepares to legalize recreational marijuana in July of 2018, employers are exploring how the new legislation will affect the safety and health of their respective workplaces, as well as planning for potential risks or disciplinary action in the event of an employee arriving at work under the influence of the drug.
The new legislation will allow all Canadians who are eighteen years or older to:
- Possess up to thirty grams of marijuana.
- Share up to thirty grams of marijuana with other legal adults.
- Purchase dried or fresh marijuana from provincially licensed retailers.
- Grow up to four marijuana plants.
- Use marijuana to make food and drink.
Once cannabis is legalized, employers can expect to treat any resulting employee impairment case with the same guidelines already present in their existing drug and alcohol policies, including prohibiting the use of the drug on the jobsite and disallowing employees from entering the jobsite while under the drug’s influence. However, employers are still encouraged to revise and specify their drug and alcohol policies to set out guidelines specifically for marijuana use, especially including non-medical use of the drug.
It is recommended that revised policies include:
- Disclosure processes for any use of marijuana detected in the workplace.
- Clear consequences for non-compliance, with outlined progressive disciplinary action.
- Attention to human rights as well as accommodation policies for potential dependency.
- Clear procedural outlines for testing.
- Thorough and effective management and supervisory training regarding both medical and non-medical cannabis use in the workplace.
It is also advised that employers educate their employees on the revisions to the policy and that the revisions are connected to performance, adopted in honest and good faith, and are necessary to meeting work-related expectations.
Medical experts are still developing an accurate and reliable measure for marijuana impairment at the time of testing, as THC, the psychoactive component of the drug, can be detected in a person’s bloodstream for up to thirty days after use. Judicially speaking, employers have not been permitted to conduct mandatory random drug testing unless the impairment occurs in a safety-sensitive workplace, if there is evidence of a drug or alcohol use problem among the employee base, or if the employer has reasonable cause to believe that the employee is impaired, such as witnessing bloodshot eyes, slower reflexes, the smell of cannabis smoke, or the presence of drug use materials. Drug testing after an accident within the workplace can also be permitted as safety takes precedence over employees’ right to privacy. In any of these instances, it is imperative that the employer has a clear drug and alcohol testing policy already in place so that there is no confusion when it is used to determine procedures and consequences relating to employee impairment in the workplace.
Any employee who refuses the test in violation of the company’s drug or alcohol policy can be subject to disciplinary action, and any employee who demonstrates dependency on the substance for which he or she is tested is entitled to accommodations including counselling, rehabilitation, and a return to work program.