Are You Asking the Right Questions?

With the legalization of recreational-use cannabis, there will be two competing issues facing your business:

• Employers are entitled to implement zero-tolerance policies against impairment in the workplace.
• It will be legal to use cannabis off-duty.

There are still many unknowns around how to effectively and conclusively test for impairment resulting from the use of cannabis. Testing methods for identifying THC in the body are available, however, the presence of THC does not necessarily conclude impairment. In addition, to muddy the waters just a little further, there are strict limitations on drug testing in Canada.

So, with all that taken, how does an Employer protect the health and safety of their workplace?

There are certainly many efforts you can make to address this change in legislation, and considering them all will be key. But, to start, you should, at the very least, make sure your policy is adequate and practical for your workplace and the culture you are looking to achieve, and that your workforce is trained on and understands the contents of the policy.

Workplace policies, prior to legalization, may define cannabis as an illicit or illegal drug. With the planned legalization of cannabis, these definitions may no longer apply. Employers need to review all policies that include a definition of drugs, and revise them to ensure they address cannabis appropriately.

The following best practices may be helpful for designing your relevant workplace policy:

• Awareness
  • Clearly communicate safety risks of cannabis use
  • Address how to identify possible cannabis impairment
• Code of behaviour
  • Include a code of behaviour in your policy, outlining standards including; expectations of acceptable on and off-duty behaviour, work performance and fitness for duty, smoke and scents at work – to address the smell of cannabis
• Roles
  • Specify whose task it is to approach a suspected impaired employee, impose a disciplinary measure, keep records, evaluate the policy, monitor work performance
• Reporting procedures
  • Encourage reporting of unsafe behaviours
  • Best practices include voluntary and non-voluntary disclosures before a violation
  • Protect the privacy of personal and medical information
• Disciplinary measures
  • Describe the types of disciplinary action that are suitable for your workplace
  • Include consequences of smoking in non-smoking areas and any actions that make employees feel uncomfortable or unsafe
• Counselling & support
  • Services such as an Employee Assistance Program (EAP)
  • Consider covering medical marijuana in benefits plans
  • Promote prevention, rehabilitation and mental health / wellness

To ensure you are regulating behaviour for your workplace lawfully and doing everything you can, within reason, to protect the safety of your workforce, we encourage you to reach out to your legal counsel, HR, specialist consultants, provincial OHS departments, and Human Rights Commission to seek advice and guidance on updating, developing and implementing policies.

For more information on this topic and the Marijuana & the Workplace course, please review this website: www.worksafestaysafe.com.