When pot becomes legal: implications for the workplace
Workplace policy on drug and alcohol use is foundational, lawyer stresses
June 6, 2017 – Joel Gervais says the heavy construction industry has more than its share of employees with substance issues and so the addictions specialist understands why certain workplaces are nervous about the legalization of pot in Canada.
The Trudeau government has introduced its bill to legalize marijuana, which is expected to take effect in July 2018.
Gervais said there’s reason to be vigilant in the workplace, but he stressed that vigilance ought to focus on behaviour, especially as it may affect the safety of the workplace and those in it.
Gervais and lawyer Jamie Jurczak led a human resources workshop this week on the implications of legalized pot for workforce management and workplace safety policies.
While legalization might push pot use up a little, Gervais stressed that pot is already an issue for all workplaces and he singled out the heavy construction industry as one place where drug use is already elevated.
Pot impairs a person’s functioning – multi-tasking is difficult when someone has used pot, it does impair memory and motor skills, disturbs attention and concentration, he explained. It can make a user paranoid and anxious. Chronic marijuana use can aggravate psychiatric or mood disorders.
Gervais sought to dispel a few myths, the first among them is that marijuana is just a harmless buzz: “It’s not a soft drug anymore.” Today’s pot has a much higher concentration of THC, the ingredient that causes the high, and a lower level of cannabidiol, which can offset the effect of THC.
But legalization of pot does not mean employers are entering a whole new frontier, Gervais and Jurczak stressed. Treat pot as you would any other substance issue, such as alcohol use.
It is the impairment, as it affects a person’s ability to do the job or the safety of the workplace, that should be addressed. Recreational drug use, even a legal one, cannot be tolerated in the workplace and employers are within their rights to impose that rule.
However, a worker may be using a drug, including pot, to self-medicate to deal with a mental or physical health issue, and employers should be addressing the health issue. Dependency, such as alcoholism, is a health issue that must be accommodated to “the point of undue hardship,” noted Jurczak. Labour and human rights case law is clear on that point.
Employers cannot refuse to hire someone due to a dependency issue; employers can refuse to hire someone if the dependency presents a safety risk.
What employers must have to meet any new challenges that could arise when marijuana becomes legal is a comprehensive drug and alcohol policy, which should already be in place, Jurczak advised. “Make sure you have one, you’re using it, you’re consistent with it.”
That policy should state:
• What is impairment;
• What behaviour can lead to you asking questions of a worker;
• What use of a substance is or isn’t acceptable;
• A requirement to report drug use for medical purposes; and
• Discipline/consequences for breaching the policy.
The policy should allow for adjustment to accommodate individual circumstances.
The bill to legalize is silent on some finer points. That means, said Jurczak, that it will fall to provincial governments to incorporate in statutes language on such things as drug testing, be it for reasonable cause, random or post-incident.
Drug testing can stand up to challenge if it is reasonably attached to “safety-sensitive” jobs or worksites; generally, it cannot be a blanket condition of employment, Jurczak explained.
She cautioned, however, that law in this area is evolving, as arbitration and court decisions continue to unfold.
Gervais noted that a punitive culture is not helpful; a workplace that offers supports to those dealing with substance use – or health issues that may underlie them – is more likely to see employees disclose because they are less fearful of sanctions.
“That is safety, folks,” Gervais stressed.
Jurczak’s bottom line was “stop worrying about what is causing the impairment and focus on the impairment.”