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Plenty of questions around pot legalization

B.C. group calling on government for further clarity on weed at work
By Sarah Dobson
| Canadian HR Reporter

Now that the dust has settled on Ottawa’s announcement to legalize marijuana, employer groups and industry experts are starting to ask tough workplace questions.

The Surrey Board of Trade in British Columbia, for example, is concerned that among the 80 recommendations made by the federal Task Force on Cannabis Legalization and Regulation, only three concern the workplace.

“Marijuana is one of these issues that, quite frankly, a lot of businesses just don’t understand what it’s going to mean to them,” said Greg Thomas, board chair.

He questioned whether there has been any discussion around a potential decrease in worker productivity or health.

“This might have some very serious ramifications if we don’t think it through carefully,” he said.

“The ramifications to business in terms of the legal side, the human rights code, workers’ compensation, the insurance companies — all of a sudden now they have all these obligations to fulfill, which come with a cost.”

And when it comes to the actual drug itself, there are many questions, said Thomas.

“If we were to create a new drug today and put it on the market, it would have to go through extensive testing and trials: We’d have to know the rate of dosage. We’d have to know how long it lasts based on your weight and the amount of fat that you have, and all these other things, do all these other calculations… With marijuana, we don’t really know any of that, and yet we’re about to legalize that.”

Similarly, Enform, the safety association for the oil and gas industry’s upstream and midstream sectors in Canada, is concerned about the impacts of marijuana on the safety of workers in safety-sensitive workplaces.

“With legalization, what they’ve seen in other jurisdictions (such as Colorado) is at least an initial increase in those who use marijuana, for obvious reasons, said Cameron MacGillivray, president and CEO of Enform in Calgary. “So you might see an increase in marijuana in the workplace.”

The group is calling on all levels of government to collaborate and harmonize labour and workplace legislation and regulation.

“Because this is new and because not all provinces have legislated this yet or have regulations around it yet, there’s a great opportunity for provincial governments to get together and, to the extent they can, harmonize or co-ordinate their efforts and their regulations,” said MacGillivray.

Testing for impairment

One big concern is the research that needs to be done on impairment-testing technologies, and acceptable practices when it comes to workers suspected of being high. Cognitive impairments can last for more than 24 hours, and up to 20 days for chronic marijuana use, said MacGillivray.

“There are number of differences with marijuana, largely around how it interacts with the system and how it gets expelled from your system,” he said. “There is no clear relationship between the level measured in a person’s system and their level of impairment, so that’s a problem.”

Until there is clear evidence and a complete understanding of what level of impairment is deemed “safe,” a zero-tolerance policy is the only safe choice, he said.

“We think it’s very appropriate to have random testing where (the) criteria are being met. In other instances, there would be mandatory testing for everybody before they go to a safety-sensitive workplace... and then you might have some reasonable frequency for retesting — maybe once a year or perhaps more frequently. And then you could also have post-incident testing, which we do now.”

But random testing is not always necessary, according to Ed Secondiak, president of ECS Safety Services in Brooks, Alta.

“If you have a good policy and if you really promote the education of employees and if you have good, trained supervisors, your normal testing for post-accident or reasonable cause is sufficient to maintain safety.”

Instead, it’s best to focus on how drugs and alcohol can affect performance and put others at risk, to get people to start making the right decisions, he said.

“If you take a disciplinary approach solely, you’re doomed.”

While there is good testing for alcohol, the same is not true for marijuana, according to Julie Menten, a lawyer at Roper Greyell in Vancouver.

“Policies will need to change as we learn more,” she said. “So that’s what a lot of employers are doing to try and minimize risk, is being more vigilant in their observations of people when there are near misses or if there are reasonable suspicions that someone is using, they immediately send them for testing.”

Usually, the issue comes to light when a person goes from being a recreational user to having a problem, said Menten. That can mean higher rates of absenteeism, tardiness or declining performance.

Accommodation issues

Marijuana also raises complex accommodation issues. The employer, said Thomas, is saying, “I don’t know what I can and can’t do and I don’t know what level of accommodation I have to offer… and if I don’t follow those rules, what’s going to happen to me, what’s going to happen to my business?” he said. “It’s not really spelled out anywhere — there’s no policy, there’s no procedures, there’s no guidance for employers.”

In B.C., there is quite robust jurisprudence on the duty to inquire from a human rights perspective, so if an employer has a reasonable basis to suspect the conduct it’s about to discipline or terminate for could be influenced by drugs, alcohol or a mental health problem, and it doesn’t ask about it, that can be considered discriminatory, said Menten.

“It puts employers in a bit of a tough spot because they don’t usually have the skills to say, ‘So, what’s going on in your life? Is there something happening?’ So they’ll put these things in their disciplinary letters: ‘Please remember we have an EAP program if you need to access it.’”

There will be mistakes along the way, with employers being “either a little too aggressive on getting tested in thinking you have reasonable grounds, and maybe people using a little too much. There’ll be a period where there’s going to be some blips but then… people will get back to normal routines,” she said.

SIDEBAR

Recommendations

Of the 80 recommendations made by the federal Task Force on Cannabis Legalization and Regulation in December, three concerned the workplace:

•Facilitate and monitor ongoing research on cannabis and impairment, considering implications for occupational health and safety policies.

•Work with existing federal, provincial and territorial bodies to better understand potential occupational health and safety issues related to cannabis impairment.

•Work with provinces, territories, employers and labour representatives to facilitate the development of workplace impairment policies.

But the Surrey Board of Trade in British Columbia also wants the federal government to identify a regulatory authority that employers and employees can rely on for consistent information, updated regulations, and standardized forms and templates that are legally vetted to be sound. The group also said the regulatory authority should take the lead on devising:

•a workable definition of impairment

•a universally applicable checklist that non-medically trained supervisors or managers can use to determine impairment

•a list of the types of medical practitioners who are qualified to be signatories on such standardized medical forms.

The board also wants a standardized medical marijuana or cannabinoid form that includes details on the frequency of usage, the anticipated impairment of the employee, the anticipated duration of usage, and recommendations of accommodation that do not limit employer determinations, but provide guidance and awareness of the disability in question.

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