July 12, 2016
In just about one year, marijuana will be legalized in Canada. When Health Minister Jane Philpott made this announcement on April 20, she promised this change would happen with support from the justice and public safety departments. However, there are no details on what this means and what tools will be made available to employers. So far, there has been no indication this will include explicit legislation allowing employers to carry out post-incident, reasonable cause, random or other testing.
The effect of this change is that employers will no longer be challenged just with the legal use of prescribed medical marijuana; they will also be confronted with the myriad of issues associated with legal recreational use — use that may be carried over into workplaces. At your holiday party or summer work picnic, your employees could be getting high in the parking lot of your chosen venue — not hiding it, but doing it out in the open because it will be legal to do so. Impaired driving caused by employees drinking alcohol was previously the main concern at work-related social functions. Now, driving high has to be on your radar, especially if your employees have driving as one of their regular job duties and your workplace is a safety-sensitive one.
But is marijuana impairment for one user the same as another? Not to the same extent as alcohol. Different users have different tolerances. Smoking marijuana has a faster impairing effect than drinking alcohol. The effect also dissipates faster. Driving patterns are different, too, often being slower, not faster, and not necessarily with drivers veering outside the lines, as is often the case with alcohol impairment. As not all users are affected in the same way, this makes setting thresholds difficult. Testing thresholds in workplaces are typically established on the basis of 4 nanograms per millilitre.
In Washington state, marijuana has been legal for about two-and-a-half years. Since this time, there has been a sharp increase in marijuana involved in impaired-driving cases. Brian Capron, a toxicologist who assesses blood samples from 13,000 drivers per year, says one-third of the impaired drivers in the state of Washington are testing positive for marijuana. In the state of Denver, where the use of the drug has been legal since 2014, there has been a similar experience. The Denver Post reported about one in eight citations issued for DUIs involved suspected marijuana use.
Given these alarming statistics, police officers are being specifically trained to identify drug impairment. This is an important step for employers, too. As workplace use is likely to rise as a result of legalization, identifying impairment will become that much more important here in Canada.
So far, there is no universally accepted work site test for marijuana like there is the breathalyzer for alcohol testing — but this could soon change. A Vancouver-based company, Cannabix Technologies, is developing a marijuana breathalyzer. The device allows real-time analysis of exhaled breath without any cumbersome extraction techniques. The device is expected to undergo field testing in the coming months.
Identifying impairment and accessing effective testing presents a challenge for safety professionals and their human resources colleagues in numerous industries, in both safety-sensitive and non-safety-sensitive work environments.
As such, it will be important for employers to continue to monitor and use (ideally through professional testing services) new technologies as they continue to evolve, especially those testing methodologies that can show current impairment and not just use by workers.
Dos and don’ts
There are many things employers need to consider now that marijuana will be legal in Canada.
• Do have a drug and alcohol policy that addresses workplace impairment from prescription, over-the-counter and illegal drugs.
• Do ensure the policy is effectively implemented, training is provided to workers and supervisors and the consequences for failing to comply with the policy are understood.
• Do accommodate an employee where there is a legitimate underlying disability. This could include an independent medical exam, leave of absence or temporary reassignment.
• Do train supervisors and workers to identify impairment in their co-workers and give them tools to report concerns to a safe place in the organization where the concern will be acted upon.
• Don’t get distracted by the source of the impairment, but focus on the issue of impairment.
• Don’t think that all employees are aware of the dangers of driving high and how being high can negatively affect their ability to do their job safely.
In a safety-sensitive workplace, an impaired worker’s actions can result in devastating consequences. That was the case with the Metron Construction 2009 Christmas Eve fatalities in Toronto. According to toxicology reports, three of the four deceased workers, including the site supervisor, “had marijuana in their system at a level consistent with having recently ingested the drug” at the time of the incident.
Ultimately, marijuana is an impairment-causing substance that employers should proactively address. As more details are released regarding regulation and as the legalization date looms, employers need to get ready to communicate expectations to employees, train them on effects of the drug, explain the hazards marijuana use presents in the workplace and ensure they have sufficient controls in place to address its potential workplace use.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
For more information on new developments in Workplace Law, please refer to our website at: http://www.mathewsdinsdale.com/news-events/in-a-flash/
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