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JOURNALISM: Cannabis & Human Resources [Download .doc version]


Investigative News, Marijuana and Human Resources
by Jeffrey Reed, As Published By Inside Track Magazine


As of October 17, 2018, Canadians will be able to legally purchase and consume cannabis. Yet the so-called marijuana law isn't as black and white as buying and using the substance, especially when it comes to liability attached to employer-employee relations and job safety which, ultimately, affects the population as whole.

In fact, legislation outlining the federal government's approach to Bill C-45 has created a grey haze of smoke in the eyes of many industry sectors, including the railway industry.

As the Railway Association of Canada (RAC) welcomed the Railway Safety Act (RSA) on May 31, it encouraged the rail industry and Transport Canada to consider measures that would help advance safety as legalization of cannabis approached. RAC outlined in detail "why Canada's railways are concerned," and "what Canada should do before marijuana is legalized." Said RAC, "Safety is a top priority for Canada's railways. Before recreational marijuana becomes legal, governments should be on board with policies to ensure workplaces remain safe."

According to RAC, drug impairment poses a danger to everyone in the workplace. This is particularly the case in safety-sensitive industries such as rail where impairment can increase the risks of serious injury and death. RAC believes "cannabis use could increase following legalization. Evidence from jurisdictions where marijuana has been legalized demonstrates increased consumption following legalization."

In addition, RAC raised concerns about how marijuana can impair the critical abilities necessary for working safely. "These skills, such as quick reaction times, the ability to respond to unexpected events, and sound decision making, are those needed for the safe operation of locomotives and equipment in rail operating environments," RAC outlined.

RAC offered three suggestions in the preparation of legalized marijuana:

  • Establish maximum permissible evidence-based levels of marijuana impairment, especially for those working in transportation safety positions;
  • Develop an acceptable standard for instruments used to measure cannabis impairment, similar to a breathalyzer;
  • Introduce regulatory tools allowing those in safety-sensitive industries to enforce zero-tolerations impairment policies when it comes to marijuana.
Currently, railway employees in Canada can be tested for drug or alcohol use if suspected of using either, if they are involved in a derailment or safety violation or when they return to work following rehabilitation. In addition, positions involving maximum safety requirements need to pass a drug screen. And engineers and conductors operating in the U.S. can face random testing by American law enforcement officers.

Fiona Brown, a partner at Toronto law firm Aird & Berlis LLP, focuses on advising clients with respect to compliance with employment standards, human rights, pay equity, occupational health and safety requirements and minimizing liabilities with respect to terminations. She said the legalization of recreational cannabis will result in "significant societal changes."

According to Brown, "Many employers operating in safety-sensitive industries, such as the railway industry, are considering whether to implement drug and alcohol testing. In fact, certain employers have called for legislation to explicitly permit post-incident, reasonable cause, random and other drug testing. "Drug testing in Canada is acceptable in very limited circumstances and it is again a highly fact-specific inquiry. It is very important for employers in safety-sensitive industries to take proactive steps to craft new or update existing policies addressing cannabis use and impairment in the workplace," Brown said.

According to Patrick Groom, a partner in the Labour and Employment Group of McMillan LLP in Toronto, there is no "one-size-fits-all" policy for employers to address use of cannabis. But Groom encourages all employers to implement a drug and alcohol policy, whether it involve marijuana, prescription drugs or other narcotics or substances which may impair staff.

"I have had several clients who operate in the railway industry - for example, people who do track maintenance (who have had concerns)," Groom said of questions that have arisen regarding the use of marijuana. "It's not unusual for an employee to light up a cigarette while they're maintaining tracks outside, or working alongside the rails. Where there's concern is that people may not treat marijuana with as much classification, or think of it as something like alcohol, and instead may be tempted to spark up a marijuana cigarette."

When it comes to cannabis in the workplace, Brown said there is no absolute right to use cannabis at work, and concurrently the legalization of recreational use will not substantially change this principle.

"Access to cannabis for medical purposes has been legal in Canada since 2000," Brown explained. "Accordingly, many employers already have policies in place addressing the use of cannabis in the workplace. Human rights legislation and case law impose a very broad duty on employers to accommodate medical cannabis users and employees addicted to cannabis to the ‘point of undue hardship.' The scope of this duty to accommodate has been heavily litigated and unlikely to change in response to the legalization of recreational use. Accommodation is a highly fact-specific determination and may involve modified hours, duties and/or time off work on an unpaid basis.

Recreational use may be more contentious and subject to change as the case law develops, according to Brown. She recommended as a first step that employers update existing or craft new cannabis policies to address the legalization of recreational cannabis.

"When drafting policies, employers may also consider looking to existing case law regarding non-prescription medication and alcohol," she said. "As with alcohol, employers may prohibit the use and possession of cannabis in the workplace and discipline employees who attend work while impaired."

McMillan LLP Litigation Group lawyer Laura Brazil, who specializes in construction, real estate and commercial litigation, said prior to the October 17 legalization date that a proactive approach would have been best. She added, it's not just imperative to have a policy in place, but also it is critical to "train your employees, and make sure they are familiar with (the policy). This is not something you want implemented the day after legalization. Now is the time to put the policy in place and to be training your employees."

Brazil said questions have arisen as to "how do you measure impairment, and how do you define that in your policy since, unlike alcohol, there isn't an established limit, or even a clear testing method that's generally accepted? So this is a good time to revisit your existing policy, but also a good time to update it with a view to the unique aspects of cannabis."

Brazil said not only is it important to walk your employees through the policy, but also "it's important to get their written signoff so that you're protecting yourself as an employer." Added Groom, "Training is an ongoing thing. Once it's out and people understand the policy, and they've signed off, that's the main thing. But reminding people that the policy is an ongoing thing is important."

No group is more conscious of how recreational use of marijuana could lead to disaster than the Canadian military. On September 7, new restrictions were unveiled after a year of internal planning. What resulted were the military's new policy which is tougher than its policy on alcohol use. It applies to all uniformed personnel as well as civilian staff of the Department of Defence.

All Canadian military personnel must refrain from using marijuana at least eight hours before duty. Military members serving overseas, and those on aircraft and ships, are not allowed any use of marijuana. In addition, there's a 24-hour restriction on service members who plan to handle or maintain a weapon, ammunition or military equipment, plus a 28-day restriction on members of the military who are soon serving on submarines, aircraft or operating a drone.

If anything is certain now that Canadians may purchase and use cannabis, it's that uncertainty has arisen amongst employers in terms of regulations and safety associated with marijuana use. Working with a lawyer to update drug and alcohol policies is a must. Educating staff is an ongoing task. After all, there should be no shortcuts involved when safety is at risk.

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