Safety First and Last: Cannabis challenges

On Oct. 17 the Cannabis Act came into force; the Act is primarily aimed at protecting youth from accessing cannabis and displacing the illegal cannabis market. Whether you are in favour or opposed to this socially progressive change this will have an effect on our workplaces as there will be some challenges that employers will undoubtedly face.

While cannabis use isn’t new, employers should be concerned about how legalization may affect safety in the workplace. Marijuana is already the most commonly encountered substance in workplace drug testing. With social normalization, it would stand to reason that the number of users, potential impairment and the total number of workplace incidents will rise.

Therefore, from a policy perspective, it will be important for employers to identify which positions or tasks are safety-sensitive and how their policy will address individuals using marijuana for medicinal purposes that work in safety-sensitive or safety-critical positions. Safety-sensitive refers to a position in which incapacity due to impairment could result in direct and significant risk of injury to the individual, others or the environment. Enform, a safety organization for the Alberta oil and gas industry, recommends “At minimum, there must be an express prohibition on the use of marijuana in safety-sensitive workplaces. There must also be an express prohibition on using marijuana in close temporal proximity to attending work on a safety-sensitive worksite. An express prohibition on the possession, storage, use or sale of marijuana on safety-sensitive workplaces or facilities associated with those workplaces must also be included.”

Many will argue that zero-tolerance policies are required for safety-sensitive positions but this can become one of the challenges employers face based on their duty to accommodate to the point of undue hardship under the Human Rights Act. Employers must consider how they are going to deal with individuals that are using cannabis for medicinal purposes for a disability, especially for those in safety-sensitive positions. Medical marijuana has been a prescribed treatment since 1999 in Canada but there is still going to be a rather lengthy learning curve required here, as there are many stereotypical assumptions made regarding an employee’s abilities who has been prescribed marijuana. Employers must first consider whether the employee can carry out their essential duties and what type of accommodation may be necessary. In addition to accommodation issues, employers are potentially going to be faced with employee performance issues due to increased recreational use of marijuana. Through policy and training, employers will need to be clear on what it means to be fit for duty or impaired.

When it comes to drug testing, employers are limited. In Ontario, the Ontario Human Rights Commission states, “The primary reason for conducting drug and alcohol testing should be to measure impairment, as opposed to deterring drug or alcohol use or monitoring moral values among employees.” Given the lack of a technology that accurately measures impairment, most employers would be hard-pressed to implement random drug testing outside of safety-sensitive positions. It is typically used for pre-employment screening, post-incident testing and as part of last-chance agreements. Employers will need to revisit policies on testing as the landscape surrounding testing, methods of testing and legal precedents may change how this is viewed.

The recreational use of marijuana in Canada is now legal. Employers need to anticipate and prepare for the trials that lie ahead and create policies designed to address and manage these challenges.

Jeff Thorne is manager of training at Occupational Safety Group.