August 22, 2018
By: Ron Guest, Senior Partner, TwoGreySuits
In Canada, on October 17, 2018 recreational use of marijuana will become legal.
The Cannabis Act will allow adults in Canada to legally engage in the following activities:
• Purchase fresh or dried cannabis, cannabis oil, plants and seeds for cultivation from either a provincially or territorially regulated retailer, or where this option is not available, directly from a federally licensed producer;
• Possess up to 30 grams of dried legal cannabis or equivalent in public;
• Share up to 30 grams or equivalent of legal cannabis and legal cannabis products with other adults;
• Cultivate up to 4 plants not exceeding a height of 1 metre in their own residence (4 plants total per household); and
• Alter cannabis at home in order to prepare varying types of cannabis products (e.g., edibles) for personal use provided that no dangerous organic solvents are used in the process.
Uruguay is the only other country in the world to have legalized the possession, cultivation and sale of marijuana on a national level, although it is legally available in several US states now. Research suggests recreational marijuana use will increase substantially from the approximately 25% of Canadian adults who are occasional users to as much as 40% or more. In other words, potentially, a lot of people will be using marijuana for the first time and experiencing the varied effects it can have per individual.
So what does this mean for the workplace?
Employers have expressed concern with the impact on workplace safety particularly for safety-sensitive industries such as transportation, health and the oil and gas industry.
While the legalization of cannabis has highlighted this concern, impairment in the workplace is not a new issue, and is not limited to cannabis.
There are so many questions still unanswered, for example how to accurately measure the effects of marijuana use and what constitutes legal impairment. Legal medical marijuana use has been around since 1999 and employers have had the duty to accommodate these registered medicinal users to the point of “undue hardship”. But with legal recreational use, many new issues arise.
Canadian employers are required by law to ensure safety in the workplace, but they are unsure of exactly how to do this with employees potentially working under the influence of marijuana.
Marijuana is already the most commonly encountered substance in workplace drug testing. Some employers I have talked with are concerned that increased cannabis use as a function of becoming more socially acceptable now, will result in a higher number of impairment cases in the workplace. This, combined with many other factors such as elevated THC levels, detection methods, combinations of marijuana use with other legal drugs, effects on inexperienced users and even edibles effects (when that becomes legal) have employers very nervous about the whole thing. Frankly, I cannot disagree.
Studies I have read indicate employers are waiting on government for direction on answering the many questions legalization brings such as a clear definition of impairment, grounds under which employees can be tested for cannabis use, etc. With many unanswered questions, what should employers be doing now to ensure safe workplaces? Certainly the government will not have all the answers before October 17 and likely for a period after that date.
My recommendation is that employers, at a minimum should TALK with employees about it before legalization. They should:
1. Explain that it will still be illegal to use marijuana in the workplace, unless they are a registered medicinal user. (and even still there are limitations on smoking marijuana in the workplace for these users)
2. Help/educate employees to know more about marijuana in general and to identify the typical effects of use such as lack of concentration, impaired learning and memory, changes to thought formation and drowsiness to name a few, which can effect job performance
3. Explain the company’s obligation to ensure a safe workplace and the employee’s role in that
4. Explain that in safety sensitive jobs there is a zero tolerance policy
5. Put some onus on the employee to help the company by reporting blatant use, and identify suspected use affecting safety or job performance, but also that the company will be the one to deal with this, not the employee who identifies it.
6. Treat employees as adults and ask them to be responsible to their job and to their employer and to workplace safety and to help the company manage through these times of uncertainty with the new legalization.
As legalization becomes reality, new measures/guidelines will undoubtedly come out, but in the meantime, TALK to your employees.
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