A major issue debated these days is how employers can prepare themselves and their organizations for the coming legalization of cannabis in Canada. A panel discussion at a recent Vancouver Island Regional Construction Association event tackled this contentious topic head on. Panel members included Dr. Richard Stanwick, Chief Medical Health Officer with Island Health; Nima Rohani, a lawyer with McConnon Bion O’Connor and Peterson in Victoria; and Tom Brocklehurst from WorkSafeBC. Suffice to say, there was standing room only at the event.

In a nutshell, the absence of reliable testing to detect impairment, coupled with the complexity of both recreational and medical consumption, means employers are in for some uncertainty in the coming years. Employers certainly have a duty to accommodate disabilities, and therefore will have to find ways to enable prescription-based consumption without jeopardizing workplace safety. Much still needs to be worked out, and lawyers will be busy for years to come defending competing rights and workplace interests.

Another factor complicating cannabis use in the workplace is that the effect of cannabis on an individual is far more variable than the effect of alcohol. To quote Dan Demers, a senior manager at CannAmm – a company providing occupational employment drug testing services – since alcohol contains only one substance that impacts behaviour (ethanol) while an average cannabis plant contains over 70 psychoactive chemicals, comparing alcohol to cannabis is “like comparing an apple to a hubcap.”* As legalization relates to recreational use, keep in mind that most organizations already have policies around zero tolerance for alcohol, which will need to be updated to include cannabis consumption in the workplace.

These new policies may include a mandatory reporting requirement for all employees and this, coupled with a frank discussion about policy developments and heightened concern for workplace safety, will bring employers closer to sound and fair workplace policies. Training supervisors to recognize signs of impairment will also be an important step. Law enforcement officers have been trained in visual roadside screening for many years, so this will not require re-inventing the wheel, but the advent of legal recreational use will require more vigilance and oversight of employees. Review your firm policies and standards of conduct – perhaps have renewed signoffs from employees – and then enforce those policies and standards strictly.

Medical cannabis in the workplace has already been discussed in several legal cases. Ultimately, there is a delicate balance between the employer’s duty to accommodate and the employer’s obligation to ensure a safe worksite. All panel members at the VICA event agreed that there is no challenge-proof screening device for cannabis impairment on the immediate horizon, which leaves it up to the employer to determine when or if the line of creating an unsafe work environment is crossed by an employee’s medical cannabis use. However, it is also important to remember that the situation is really no different to an employee taking prescription painkillers following knee surgery.

While the employer has a duty to accommodate that injury or disability, this duty does not supersede the duty to ensure a safe work site. The overriding theme from the panel was that if employers are in doubt, they should remove workers from the worksite – with pay if necessary – and let the legal chips fall where they may. As always with safety concerns, the suggestion is to err on the side of caution.

Of course organizations need to examine their specific industry requirements, operational culture, and risk tolerance, with input from their own legal and other subject matter experts, when tackling this issue. We suggest you start now, if you have not already.

*from an article in the April 2018 MM&D magazine

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case.  For any particular legal problem, seek advice directly from your lawyer or in-house counsel.  All dates, contact information and website addresses were current at the time of original publication.