Cannabis and the need for new workplace policies

With cannabis legalization fast approaching, many canadian retailers have burning questions about its potential effect on the workplace

BY JESSE DONALDSON

“When coming from under the influence of this narcotic, these victims present the most horrible condition imaginable. They are dispossessed of their natural and normal will power, and their mentality is that of idiots. If this drug is indulged in to any great extent, it ends in the untimely death of its addict.”

Chief Charles A. Jones, “The Black Candle”, 1922

AS of October 17, 2018, Canada will become the first G7 country to legalize cannabis at the federal level. And that change is causing some employers to panic. According to a recent survey conducted by Ontario’s Public Health and Safety Association, nearly one-third of employers are concerned about legalization’s impact on the workplace, in areas ranging from attendance, to performance, to safety. And as Paula Allen explains, while the situation won’t be nearly as dire as “The Black Candle” might have forecast back in 1922, legalization will definitely necessitate some changes in the workplace.

“WE’RE NOT SUDDENLY GOING TO HAVE A HUGE INFLUX OF PEOPLE COMING INTO WORK STONED, OR MAJOR ISSUES LIKE THAT. BUT THERE ARE CERTAIN THINGS THAT EMPLOYERS ARE GOING TO HAVE TO DEAL WITH THAT THEY HAVEN’T HAD TO DEAL WITH BEFORE.”

PAULA ALLEN
Morneau Shepell

“We’re going to see a percentage shift, not a cataclysmic shift,” says Allen, VP of Research and Integrative Solutions with Morneau Shepell. “I can’t see that things are going to change in a massive way. We’re not suddenly going to have a huge influx of people coming into work stoned, or major issues like that. But there are certain things that employers are going to have to deal with that they haven’t had to deal with before.”

“We’re entering into relatively uncharted territory,” agrees Dan Demers, Senior Manager of Strategic Business Development at CANNAMM Occupational Testing Services. “Most employers are facing a situation where—they believe—more people are going to be showing up to work unfit for duty. They’re going to have to deal with situations, questions, and concerns that they’ve never had to deal with before. And they’ve never been trained on how to navigate those things safely and lawfully in the Canadian landscape.”

Understanding usage

According to the 2017 Canadian Cannabis Survey, 23 per cent of full- and part-time workers use marijuana, and 18 per cent use it on a weekly basis. Of the survey’s roughly 10,000 respondents, 21.5 per cent admitted to using marijuana before or during work last year, with roughly 8 per cent doing so weekly or daily. According to “Clearing the Haze”, a report issued by the Human Resource Professionals Association, cannabis is currently the most commonly-encountered substance in workplace testing. And, as Demers points out, with legalization approaching, there is a good chance that usage will increase; a 2017 survey by Quest Diagnostics found that positive drug tests increased sharply in American states where recreational marijuana had been legalized. However, he also points out the fact that the projected increase is likely to be a modest one.

“We’re going to see an increase, we just don’t know what that’s going to look like,” he says. “Does that mean it’s going to be 25 per cent of your workforce? No. Absolutely not. In Canada, we see positivity rates overall of between 3-4 per cent when we do testing for dangerous industries. If we follow the US precisely, it might look like 5-7 per cent.”

The grass is always greener

As far as controlled substances go, marijuana actually has a surprisingly short legal history in Canada. While it was officially included in the Opium and Narcotic Drug Act of 1923, very few Canadians had ever heard of cannabis in the early part of the 20th century, and fewer still had access.

“WHETHER IT’S FOR MEDICAL REASONS, OR FOR RECREATIONAL PURPOSES, OR BECAUSE OF AN UNDERLYING DISABILITY, YOU CAN’T SHOW UP TO WORK AND BE UNFIT FOR DUTY. THAT’S NOT GOING TO CHANGE. WHAT CHANGES IS TO WHAT EXTENT THE EMPLOYER HAS A DUTY TO ACCOMMODATE AND GO THROUGH THE ACCOMMODATION PROCESS.”

DAN DEMERS
CANNAMM Occupational Testing Services

Marijuana use remained relatively rare in Canada—even as late as 1964, there were only 39 arrests nationwide related to cannabis use. By the 1970s, those numbers had begun to trend sharply upward; by 1978, police reported that 50,177 people had been charged nationwide. However, with that upswing in numbers had come a change in attitudes around cannabis use; in 1970, when the Vancouver police violently broke up a peaceful pro-cannabis rally in Gastown, public opinion was largely on the side of the protestors. A 1972 report by the LeDaine Commission (a group tasked with studying the non-medical use of drugs in Canada) recommended the repeal of cannabis prohibition, on the grounds that it posed little in the way of harm to its users. While the report was ultimately shelved, medical marijuana was legalized in Canada back in 1999, following years of increased usage that peaked in the 1980s.

While cannabis usage is hardly a new phenomenon, the number of companies that currently have policies in place to address its use in the workplace is low—only 11 per cent have medical marijuana policies, according to the HRPA—and roughly half of the companies surveyed are afraid that their existing policies will be unable to address the realities of a post-legalization workplace. Luckily, as both Demers and Allen explain, most workplaces already have policies in place that can be tweaked to include cannabis, most prominently those dealing with workplace intoxication.

“We’ve had other intoxicating or impairing substances that have been legal for a long time,” Allen notes. “There are already policies in place that really put some controls on how these present in the workplace. Just because something is legal doesn’t mean that it’s appropriate for you to use in the workplace. From a recreational drug point-of-view, it’s similar to alcohol. In most workplaces, drinking on the job is prohibited, and coming into work intoxicated is prohibited. It’s a huge health and safety issue, it’s a customer service issue. The same is still true, so there’s no leg for an employee to stand on if they’re saying ‘I can use this at work because it’s legal.’”

“You’re not allowed to be impaired at work. Period,” says Demers. “Whether it’s for medical reasons, or for recreational purposes, or because of an underlying disability, you can’t show up to work and be unfit for duty. That’s not going to change. What changes is to what extent the employer has a duty to accommodate and go through the accommodation process.”

Where things may change for some employers, Demers explains, is in the need to accommodate employees using marijuana for medical purposes—in which case it becomes a matter of balancing safety, level of potential impairment, human rights law, confidentiality, and the types of duties performed. Other changes may include decisions regarding workplace drug-testing—introducing it where warranted or doing away with it altogether (such as pre-employment testing for cannabis—already on the decline in Canada and the US in non-safety-sensitive positions). However, the one region where no accommodation needs to be made is in regard to safety—in particular the sorts of safety-sensitive positions that turn up in retail’s supply chain, including transportation and logistics. While acute intoxication is relatively short-lived (depending on factors like dosage and individual tolerance), residual intoxication can persist into the next day, affecting things like concentration and focus. And, in a safety-sensitive position, that can be cause for concern.

“The tools employers have are going to change based on whether the occupational activity you’re engaged in is dangerous or not,” Demers says. “In an office environment, for example, it would be unwarranted for an employer to say: ‘You’re going to undergo random testing, and if you happen to test positive for cannabis, you’re fired.’ That would be totally unreasonable. There’s a balance of interest. Most office employees are not working safety-sensitive jobs. Further, if they aren’t given an opportunity to come forward to make their employer aware of an addiction that they struggle with, it makes this process unreasonable on virtually every level. But for transport truck drivers crossing the country, a temporary lapse in concentration could mean the difference between life and death. That’s a different story.”

Many safety-sensitive positions are already subject to drug testing—particularly in other industries like oil and gas. However, some retailers may now be required to update their policies—especially those that will soon be selling the product themselves.

“There will be part of that workforce that’s going to be held to a higher standard than the rest,” says Demers. “Their own internal policies regarding fitness for duty may need to be revised to recognize that the people transporting a substance that’s impairing aren’t using it at any point, which is ironic. You’re part of an industry, but because of what you do in that industry, you can’t use it. If you’re driving, or if you’re one of the pilots who are flying the product, use at time should be prohibited.”

A budding industry

When it comes to things like disciplinary procedures, Allen notes, it’s often going to be a matter of updating the language in existing policies. However, other aspects of legalization will be much more benign, such as those governing scent in the workplace, or potential for use at social events.

“That’s completely up to them,” she says. “You can prohibit cannabis at a work social event. It’s your choice, based on what you feel is appropriate for your corporate culture. It’s just a matter of expanding the language that’s already there.”

Some 20 per cent of the employers HRPA surveyed are even planning to expand their medical coverage to include medical marijuana. In terms of regulating cannabis in the workplace, Demers cautions, much of the responsibility is being left up to companies themselves. However, for organizations looking to adapt their policies, there are no shortage of options. In 2017, the state of Colorado issued its own health and safety guidelines for the marijuana industry. Organizations like Ontario’s Public Health and Safety Association are hosting seminars bringing in medical, HR, and addictions experts. In “Clearing the Haze”, the HRPA issued a list of ten recommendations—many of which can be applied by employers. While the road ahead may at times be tricky to navigate, both Demers and Allen point out that, with solid policy and good legal consultation, there’s no need to panic.

“It can sound complicated, but it’s actually pretty simple,” he says. “It’s all about balancing the interests of safety against labour law, privacy, and human rights. If the framework you put in place is based on the idea that you want to get everybody home safely, and deal with everything in a dignified, professional, confidential way, then you’re off to the races. If you’re designing an approach, with appropriate legal counsel, and using some of the really strong policy toolkits that are out there, and customizing that to your organizational needs, then that’s a really strong start.”

Dan Demers is a leading expert on the Canadian and international cannabis landscape and will be speaking on the topic at the upcoming RCC Retail Secure Conference 2018. For information concerning ways to register for the conference, visit http://rcclpconference.ca/register.