With Prime Minister Justin Trudeau promising to legalize recreational marijuana use by next year, many employers are curious how they will deal with the issue among their workforce.
While much of the legislation and specifics around what constitutes impairment is up in the air, a panel at the Vancouver Regional Construction Association’s Construction Leadership Forum were in agreement that the best thing is to have a program to deal with impairment and stick to it.
The panel discussion, Weed at Work: Risk for Employers, covered the history of marijuana legality in Canada and some of the complex situations employers may encounter.
Michael Watt, leader of the Alexander Holburn Labour + Employment Practice Group, explained that medical marijuana has been legal in the country since 2001 when prohibition was struck down by the courts. Several weeks ago, Trudeau introduced the Cannabis Act which he intends to become law next year. It would make it possible for an adult to legally possess 30 grams of marijuana for public use and to grow four plants at home.
Watt noted that each province could change the age one could use the drug if they wished.
Dave Earle, vice-president of government relations and HR services for Construction Labour Relations of BC, said in terms of impairment, legal marijuana would be in the same category as alcohol or prescription drugs and each worker has a duty to declare if they are impaired before stepping onto a jobsite.
"You can read and read about THC in the system," said Earle. "The question becomes is the individual impaired and if they are right on the day, and that’s the answer we don’t know. It is a cognitive impairment. It’s an issue and we don’t have a great way to know if they are impaired or not."
This becomes more complex as hundreds of different types of synthetic marijuana will not show up on drug tests.
Earle noted that marijuana use, like fatigue, emotional stress or drinking is just another form of impairment workers onsite need to watch for and be prepared to have a conversation about.
However, this could raise concerns about accusations of bullying and harassment.
Ken Boucher, vice-president of health, safety and environmental protection for Ledcor, said the best thing an employer can do despite the vagueness around marijuana is have a program in place and don’t waver from it.
Boucher explained that expectations and consequences should be clearly articulated to workers. Investigating impairment should be documented and done by more than one person.
"All these components are part of a good drug and alcohol impairment program," Boucher said.
But it isn’t always easy. He said that in the Denver and Boulder areas of Colorado, where marijuana use is legal, some employers have done away with pre-employment drug testing due to low unemployment rates. But Boucher said for now Ledcor won’t compromise its program.
"Employers that are moving away from their pre-employment testing, they are just moving that trouble further down the road," he said.
"If you have a joint every night after work you will probably blow past most employer tests. We would not bend on our testing regime. We have been told it interferes with their social life. But that is our program. That is what we set as a benchmark and that is what we are sticking with."
The panellists said it is very rare for an employee to voluntarily disclose that they use marijuana medicinally or recreationally and this makes the issue much simpler if one has a program in place.
"When they are caught they usually say they have authorization to possess and use, but all this is irrelevant," said Earle. "It is the same process for codeine or any other prescription drug. The individual has a duty under the law to disclose that before they come to work."
Failure to disclose alone can be grounds for discipline or even termination. However, the panellists conceded that developing, maintaining and implementing a comprehensive program is extremely difficult for small companies. The panellists recommended that associations and unions could play an important role in assisting them with this task.