In April of this year, the Federal Government introduced legislation to legalize the use of cannabis. With legalization comes a number of issues that directly impact Edmonton’s workforce, especially companies and employees involved in safety-sensitive work. With issues arising from increased usage, or at least more commonplace usage, and job site safety, many employers are looking anxiously towards the future.
Much of that anxiety is based on impairment and workplace safety. “Cannabis legalization presents a risk to workplace safety,” says Andrew Wallace, acting general counsel for PCL Construction. “Increased usage in society leading to increased health and safety risks, both in the workplace and outside the workplace, in areas such as highways.”
The Alberta Government is committed to protecting Albertan workers as cannabis use becomes more open. On top of banning cannabis use in vehicles, the government is also “developing promotional materials and undertaking public education and awareness about drug-impaired driving” and “working with industry and labour to assess current workplace rules to address impairment at work.”
Many employers already have policies in place and do not anticipate much change come legalization. This is in part because of similar restrictions and policies regarding alcohol consumption and workplace safety, and in part because cannabis use is already widespread. A survey released earlier this year estimates that 14 per cent of Canadians over 15 years of age have used cannabis in the past three months. Of them, 56 per cent said they are using it daily or weekly.
“Not much is going to be changing. At least not in the beginning,” Terry Parker, executive director of Building Trades of Alberta, says. “We follow the COAA [Construction Owners Association of Alberta] drug and alcohol policy and on our job sites. Legalization is very similar to alcohol; you can’t come to work drunk and you can’t come to work high on drugs. Even with the legalization of marijuana, those policies will still be in place.”
PCL uses these same policies on their job sites.
“We do not currently anticipate any changes to the policy with the legalization of cannabis,” Wallace says. “Whether the substance is illegal or legalized, our focus remains on reducing the risk to our workers and the public related to potential intoxication of workers on our sites.”
The real challenge, and the concern of many employers and employees, comes with more open use impacting their workers while on the job. Stats Canada released a report this year in which 79 per cent of Canadians said their habits will not change post-legalization, and less than 7 per cent of non-users said they would try it after legalization. Twenty-four per cent of current users, however, said they will use cannabis more once it is legal. Since Albertans will be able to light up in specific public places, cannabis use is going to be part of a regular experience. That can impact workplace safety and the rights of employees and employers alike.
Legalization will have to sort out some issues in the courts, namely around a worker’s right to privacy and an employer’s right to maintaining a safe work environment. According to Dan Bokenfohr, an employment and labour attorney at McLennan Ross LLP, “The big clash in terms of legalization and the law is the right of employers to keep everyone safe, employees arguing the need to accommodate medical use, and, from a privacy perspective, employees saying, ‘This is a legal product and what I do on my own time is my business.’”
It is important to note that cannabis use is not a human right and so employees can only claim discrimination under specific circumstances, namely in its use to treat a disability, mental or physical, and addiction issues.
“There may be a myth out there that now that it’s legal everyone is entitled to human rights protection. Cannabis use is not subject to blanket human rights protection,” Bokenfohr confirms. “Everyone is entitled to a reasonable expectation of privacy but not every cannabis user is equal under the rule of law. Employers can’t discriminate on the basis of disability, but this does not apply to recreational use unless it involves addiction, which is a recognized mental illness, in which case they will need to look at possible accommodations.”
Since medical cannabis has been legal in Canada since 1999, many of the issues surrounding its use have already been addressed. Many companies have policies that help employees find a suitable position that does not compromise workplace safety. Similarly, cut-and-dry cases, like a crew smoking up before walking onto a job site, are already addressed in many safety policies.
Things get murkier with individuals’ dependence on cannabis. “There is a potential tension between drug and alcohol testing programs aimed at improving worker safety… and an employer’s obligation to accommodate persons with a drug and alcohol addiction,” says Wallace.
When a person does test positive for THC on a job site, they can be sent for an assessment. From there, a treatment plan is determined if one is necessary, and the employee gets resources to help them through their plan. “We are not about punishing the individual, we are trying to get the individual help,” says Parker.
For those who do not have an addiction but are simply habitual users, there is a major concern on the horizon. “Right now, when you are testing, it’s what’s in your system. Not intoxication, not impairment, but what’s in your system. This is what will come into question at a later date” says Parker. “Because you will have an individual saying, ‘Cannabis is legal. I smoked it two days ago. I’m not intoxicated at the current time. However, it is still in my system.’ An individual can say they are a habitual user, but they are not impaired on-site.”
A lack of an agreed-upon intoxication or impairment test is one of the most significant hurdles facing safety-sensitive workplaces as legalization looms, one that Bokenfohr argues will be a large part of the post-legalization debate.
“We’ve got this complex drug that is not as well-researched as other legal drugs. The testing science and technology is not quite there yet,” he says. “Given that it is such a complex drug, you can’t measure impairment in the same way [as alcohol]. What you’re getting at best is an indication of recent use, but what that tells you about impairment is still unclear.”
“This is an area that’s going to get a lot more attention in the courts. When you get someone who says, ‘I wasn’t impaired, you can’t prove I was, and I didn’t do anything illegal,’” says Bokenfohr, “what will happen is you will have to take an individualized approach and really dig into the facts of the particular employee, the workplace, and the nature of the job.”
What can companies do to prepare for cannabis legalization before the court cases start? “Where employers do not have drug and alcohol policies and testing programs, they should consider implementing some, especially where employees are working in safety-sensitive positions,” says Wallace. “Some proponents of the legalization of cannabis have suggested that many of the potential risks of legalization can be addressed through appropriate education and awareness programs… I remain hopeful that governments will invest in this effort. If governments fail to do so, employers may need to engage in those efforts themselves.”