As recreational cannabis legalization draws closer, some companies are missing the mark when it comes to employer training.
Last Friday, the Greater Vancouver Board of Trade hosted ‘Cannabis in the Workplace’—a discussion to address employer concerns regarding the changes to federal and provincial laws.
With a two-hour time limit, the event set out to answer the not-so-simple question: “What do employers need to be considering and how do they need to be preparing now for legal cannabis and the workplace?”
It’s important to note that while medical cannabis has been legal for nearly two decades, the number of Canadians now registered in the federal program has shot up to over 230,000, leaving employers scrambling to update their policies and educate supervisors.
Barring a few pot quips and iterations of uncertainty, the conference fell dramatically short of providing much clarity. What could have been an opportunity to outline cannabis-specific policy changes and accommodations for employees with medical prescriptions, dissolved quickly into a vague Q & A period urging employers to turn their focus toward risk mitigation and potential lawsuits.
To clarify the details, keynote speaker Solicitor General Mike Farnworth opened the luncheon with a bullet point overview of the new regulatory framework, in which he made it very clear that there will be zero tolerance for impairment in the workplace. “Employees have a duty to come to work sober and nothing about cannabis legalization will change that,” he said. The term ‘impairment’ stuck and dictated the conversation throughout the remaining panel discussion.
Right out of the gate, Dave Earle, CEO of the B.C. Trucking Association, reaffirmed employer attention needs to stay on the issue of cannabis abuse in the workplace. “For employers that don’t believe you have a substance use issue in your workplace, I’m going to break it to you…you do,” he said.
While impairment is absolutely a pressing concern, especially in safety sensitive work environments, most of the policies the panel went on to address already exist to tackle substances like alcohol or prescription medication, even cannabis.
Taking on the human rights angle, Cindy Zheng, a lawyer with McQuarrie Hunter LLP, warned employers of potential violations where underlying medical conditions exist. It seemed the conversation was about to take the right turn, but after continuously linking cannabis with cocaine and alcohol, however, she failed to specifically address what it means to accommodate up to the point of undue hardship—the threshold set by the B.C. Human Rights Legislation.
Zheng went on to suggest employers fall back on existing alcohol and tobacco policies, until, that is, they run into discrepancies.
“We would recommend an outright prohibition on site,” she says. Later adding, “if there is a distinction, and I’m not saying there should be, but if there is, make sure you have an articulate and reasonable basis for that distinct treatment of cannabis.”
Excluding the fundamental distinction that should be made from a medical standpoint, the number of reasons to encourage employers to understand the difference between alcohol and cannabis are seemingly endless. Let’s start with addiction rates, behavioural tendencies and overall health implications, and see if we can find a “reasonable basis” somewhere in there.
Mike Kilgallin, a partner at Rober Greyell LLP, urged employers use their own judgement when it comes to swift action, or at least until science provides a more suitable alternative.
“While we may not be able to definitively prove somebody is impaired, we want to say “there is a risk” and we want to remove [that individual] from the workplace,” says Kilgallin.
“There are going to be a lot of level-headed employees who are going to understand [expectations] and who are going to not turn the lunch room into a hotbox,” Kilgallin added. “Focus on the small few, the ones who create problems.”
It wasn’t made clear if the trouble-makers he was referring to included medical cannabis patients or just potheads who now felt empowered by the new legislation to get stoned mid-shift. One would assume the latter, but since there was hardly any reference throughout the entire conversation to dealing with medical users, it was hard to tell.
One quick-fix posed by the panelists was the integration of a self-disclosure policy. Employees would be encouraged to go on record with their addiction and dependency issues in order to protect themselves and the company. The idea here is that if the issue is not disclosed pre-incident, they would not be entitled to safeguards like rehabilitation and graduated reintegration programs.
CEO of the Medical Cannabis Resource Centre Inc., Terry Roycroft, suggests this policy, made infamous by a lawsuit won by Elk Valley Coal in Alberta last year, won’t do much when it comes to cannabis. “That would be a very difficult thing to ask,” says Roycroft. “Most people aren’t going to consider even high recreational use an addiction.”
Roycroft, who is now in the process of helping several patients apply for cannabis coverage under their workplace medical insurance, says that companies have several options to work with their employees.
“There are products that can be prescribed by a doctor that will not get them impaired,” says Roycroft. Going one step further, one of the areas MCRCI specializes in is creating specific healthcare programs for individuals based on their condition and day-to-day demands. “We can work with their HR departments […] and make recommendations of when they could use psychoactive THC and when they would be safe to go back to work or safe to drive after that usage.”
Unfortunately, it seems some companies still have a long way to go before understanding the dire need to work with their employees in this new cannabis-friendly country. “Medical marijuana is just another substance,” said Earle. “You have to treat it like any other substance.” If that’s the level from which employers are to start their education, it will be a long and treacherous journey to a new workplace culture.
by Piper Courtenay on March 10th, 2018 at 10:00 AM
Yes, You Need a Prescription for Medical Marijuana At Work and This Controversial Logging Case Proves Why
Although there is little case law on medical cannabis use in the Canadian workplace, there are a few cases that can guide both employees and employers on this topic.
Last week, we looked at the case of a man who was fired for using marijuana to relieve back pain and migraine headaches. Today we will examine the case of French vs. Selkin Logging.
In 2014, John French was an equipment operator for Selkin Logging in northern British Columbia and used cannabis to treat pain from cancer. He had spoken with his doctor about cannabis as a treatment but did not have a valid medical cannabis prescription. French was caught smoking cannabis at work and Selkin Logging enacted their zero tolerance drug policy requiring he stop consuming cannabis in the workplace. French was subsequently terminated for breach of this policy.
The British Columbia Human Rights Tribunal found that Selkin Logging was enacting the drug policy on the appropriate grounds – that an impaired equipment operator in the logging sector could be a serious safety risk. However, the Tribunal cautioned against zero tolerance drug policies saying “strict application of the zero tolerance rule, without consideration of accommodation, may offend the Code in circumstances where the individual may be legitimately using marijuana for medical purposes.”
Although the Tribunal found that the drug policy was enacted in good faith, they also stated that French’s termination was discriminatory because he was fired for using cannabis to alleviate the pain of a disability.
In the end, the termination was upheld because French did not hold a valid medical cannabis prescription.
What went wrong?
In the absence of a medical marijuana prescription, French was using cannabis illegally. He had talked with his doctor about using it to treat the symptoms of his cancer, but the doctor had not prescribed it or condoned its use at work. Human Rights legislation does not extend to requiring an employer to accommodate illegal drug use.
Employers that have a zero tolerance drug policy that does not address accommodation for medical cannabis may breach human rights legislation. Employees must have a valid cannabis prescription to be protected by Human Rights legislation. Employers are not required to accommodate illegal cannabis use.
This article was originally published on Civilized. View it here. January 20, 2016