The challenges of legalizing recreational cannabis reach beyond federal and local legislation. While parliamentarians continue to debate and develop cannabis policy within the public sector, some members of the private sector are scrambling to prepare for the transition.
To help businesses develop sound policy in time for the legalization deadline, the Human Resources Professionals Association (HRPA) has released a reportdetailing the biggest concerns that have been expressed by employers, and offering recommendations both for the federal government and for HR departments to address workplace safety and productivity concerns, while also satisfying the duty of employers to accommodate without discrimination.
The recommendations within the report are based on data gleaned from international examples such as US states that have implemented recreational legalization, as well as survey data gathered from over 650 Canadian HRPA member companies.
Employee safety concerns
Two of the top five concerns expressed by businesses pertain to employee safety when operating motor vehicles, and when using heavy machinery.
Even now, cannabis is the most commonly encountered substance in workplace drug testing. With poll data showing as much as 40% of Canada’s adult population either currently using, or interested in using cannabis once legal, workplace cannabis use is expected to increase exponentially post legalization. Employers are concerned that this increase will be accompanied by an increase in workplace accidents, injuries, and insurance claims.
The single biggest challenge in creating safety policy is determining impairment. Employers will need to know how much impairment is too much for roles within their company, and will need accurate means of assessing impairment levels. The report is careful to emphasize that “unlike alcohol, there is no current consensus on safe limits for consuming cannabis,” and that there is currently no “standard definition for what constitutes impairment.”
A tale of two policies
The report suggests two policy archetypes most likely to be used in the absence of concrete methods of impairment detection: ‘zero tolerance,’ and a ‘per se limit.’
A zero tolerance policy would only be legal for businesses to enforce if the company can establish that complete sobriety is a ‘bonafide occupational requirement’ (BFOR), such as for safety-sensitive workplaces like factories and construction sites. This is due to the responsibility every company has to accommodate employees without discrimination—if employees are allowed to come to work under the influence of prescription medication, then prohibiting workers from working while under the influence of medical cannabis would constitute a human rights violation, and would be an open door for discrimination lawsuits.
A per se limit would be more universally employable for non-BFOR companies, although still far from perfect. Alcohol impairment is already determined by a per se limit of blood-alcohol content, so this same methodology would naturally extend to testing for THC, the active ingredient within cannabis that is most commonly associated with impairment. However the report reiterates that even such a per se limit method would fall short of accurately assessing impairment, as there is still no consensus on the appropriate limit.
The report recommends that the government should set a clear legal definition of ‘impairment’ and the grounds under which employees may be tested. That’s easier said than done, however, as the lack of scientific consensus on what constitutes impairment means that at present any such legal definition would be arbitrary and subject to challenge.
“Until a clear method for establishing impairment is available,” states the report, “employers will have to keep track of the latest updates in testing technology and case law.”
But the report does offer some suggestions that employers can follow even now, based on comparable examples already in place. One such suggestion is to update any company smoking policies to specify explicitly that smoke-free laws and company rules apply equally to cannabis and tobacco. Another is to examine current perfume and scent policies, to ensure that cannabis—either smoked or applied topically—is covered in the case of scent-related complaints.
The report also suggests that an employer has a duty to accommodate their employee’s needs, not their employee’s preferences, adding that an employer may “request that the employee consume medical marijuana privately, even away from designated smoking areas.”
One important point made is that an increase in recreational cannabis use may cause decreased employee performance. This also poses a concern for employers’ duty to accommodate, as there may be underlying addiction and substance abuse issues of which the employer is unaware. If an employer in Canada disciplines or dismisses an underperforming employee for workplace impairment without offering accommodation such as addiction treatment options, that may constitute discrimination. The report states, “while employers should not go looking for substance abuse problems, they should ensure that their progressive discipline policies cover situations like these.”