With the legalization of recreational cannabis a little less than a year away, now is the time for Canadian employers to think about how they may have to revise workplace drug and alcohol policies to meet their responsibilities.
This will be a significant challenge for many companies. Developing multiple policies or protocols for multiple substances can be laborious, confusing and increase an organization’s legal risks.
Build a framework
A prudent approach is to develop a comprehensive policy using a categorization strategy that will withstand changes to the legal classification of substances, such as cannabis.
A useful framework is to begin by broadly classifying substances into one of the following four categories:
• legal, non-medical substances that cause impairment, such as alcohol and recreational cannabis
• illegal, non-medical substances that cause impairment, such as cocaine and heroin
• prescription substances that cause impairment, used legally, such as opioids or medical cannabis
• prescription substances that cause impairment, used illegally, such as opioids without a prescription.
A policy based on these four classifications will have the flexibility to accommodate regulatory changes to specific substances.
A substance that becomes legal or illegal will simply move to a new category within the framework.
At present, the focus for most employers is simply on preparing for the legalization of medical cannabis.
However, there is an increasing amount of attention being put on psychedelic drugs, such as lysergic acid diethylamide (LSD) being used to treat depression and post-traumatic stress disorder (PTSD) in North America and Europe, which could soon become an issue requiring attention from employers.
The proposed categorization strategy could be useful in the future for other substances if their legal status changes.
It should be noted that each category of substance requires its own considerations for accommodation, discipline or testing.
Organizations with employees in safety-sensitive positions, including handling heavy equipment, will likely apply two lenses to the management of the four substance classifications: one for safety-sensitive positions and one for all other positions.
Analyze the workforce
An important first step for managing employees in safety-sensitive industries is to conduct a thorough workforce analysis to determine the safety-sensitive positions and ensure these employees are clearly identified.
It is critical they receive information and updates related to drug and alcohol policy changes immediately, due to the inherent risks related to their positions.
The accuracy of the initial classification of safety-sensitive positions is critical in order to establish the drug-testing pool.
Generally speaking, only employees in safety-sensitive positions should be tested for drugs and alcohol.
Get the facts
For workplace drug and alcohol policies to be effective, it is critical that they are based on factual knowledge of the substances.
This is particularly the case with cannabis where there may be a tendency to rely on anecdote and assumption, instead of science and facts, in the development of workplace policies.
For example, a number of cannabis products contain less than one per cent of the psychoactive cannabinoid tetrahydrocannabinol (THC) and contain primarily cannabidiol (CBD) which is non-psychoactive. This means a person can use cannabis, or a cannabis extract, without being “high.”
Without this knowledge, it would be easy to mishandle an accommodation request or disciplinary decision involving an employee using a CBD-based product as a medical treatment.
As it stands today, employers have until July 1, 2018, to gain detailed knowledge about medical and recreational cannabis, the various cannabis products available on the market, as well as how these products impact an employee’s ability to do her job.
The thoroughness and effectiveness of an updated drug and alcohol policy will also be critical for managing risk and educating employees. Simply posting an amended policy in the workplace will likely not be sufficient.
Employers should ensure there is a record of employee acknowledgement, a record of training, as well as a record of knowledge verification to ensure there is no question employees are aware of the new or revised policy.
Ideally, employers will launch the new or revised drug and alcohol policies with enough time to engage in communication and training sessions with all employees before recreational cannabis is legalized.
It is also recommended that policies are developed in collaboration with all relevant stakeholders, such as health and safety team members, front-line management, in-house counsel as well as the labour relations team.
Although the HR department will likely be responsible for updating and implementing the policy, it is important to avoid developing them in a vacuum. Engaging stakeholders early on in the process will help ensure the policy is supported after it is launched.
Finally, it is important to acknowledge there is no one-size-fits-all approach to workplace drug and alcohol policy development.
Aside from the overriding priority of ensuring the safety of employees and the general public, an organization’s policy should be tailored to its specific environment, characteristics and needs.
Jason Fleming is the director of HR at pharmaceutical company MedReleaf in Toronto. For more information, visit www.medreleaf.com.
(Note this article does not intend to provide any specific or legal advice, but rather broad and important considerations. Employers may want to consult legal counsel on specific issues.)
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