Don’t Let Your Company Go Up In Smoke – What Oilpatch Employers Need To Understand Regarding the Looming Legalization Of Marijuana – Wendy Ferguson – BHRLR, CPHR
By Wendy Ferguson – BHRLR, CPHR – Ferguson HR Consulting
Many of the news articles you have been reading over the past few weeks and months pertain to the impending legalization of marijuana in Canada. It is definitely the latest buzz, especially in the energy sector. Most of us know that in July, 2018 marijuana is to become legal in Canada.
In order to write this article I have researched countless news briefs, articles, statistics, opinion pieces, current and proposed legislation. The main focus of this article is about marijuana in and around the workplace today. It is essential that employers understand what they need to do now in order to protect their organizations and their employees.
The number of people using prescription marijuana has increased significantly and currently 100,000 Canadians are legally prescribed medical marijuana. That count has more than tripled in just over a year. Attitudes are shifting and more doctors are prescribing it for a number of maladies ̶ such as chronic pain, nausea, sleep disorders, depression, chemotherapy, etc. Alright…so those are the statistics for just legal use. I can only estimate the actual country-wide usage from reading a 2015 Forum Research study, indicating 20% of Canadians admitted to using marijuana that year. Now we are in the millions. What I am trying to get at here is that this isn’t a future issue, it’s a current one. If we all get real here we know that marijuana use impacts our workplaces now and will continue to in the future, whether legalized or not.
Obviously, safety concerns are the main reason why a company would prohibit marijuana in the workplace, and these are valid concerns. Just like any drug, marijuana has been linked to an increase in job accidents and injuries. It is known to impair motor coordination and reaction time, affect cognitive processing, problem solving and memory and also may alter sense of time. A 2015 article in the Journal of Occupational and Environmental Medicine concluded there is a likely statistical association between drug use including marijuana and workplace accidents. Alberta Occupational Health and Safety has also cited the risks of using marijuana in extreme heat or cold environments, because the use of the drug alters how a person reacts to the extreme temperatures, making them much more susceptible to injury. The energy sector clearly hosts many safety sensitive positions and from a health and safety perspective, we are all concerned about those who may be unable to safely carry out the tasks of their assigned job or put others around them at risk.
Most of our companies have had substance abuse policies in place for years or decades. These policies were probably issued by HR or Health & Safety departments. Many business leaders will say that they currently have a blanket policy to deal with both alcohol and drugs and that they may not change much when legislation changes. I want to point out two very relevant differences between how we look at alcohol versus marijuana and then one very critical similarity.
RIGHT NOW doctors have the ability to prescribe marijuana, whereas alcohol is not prescribed. We need to consider that marijuana is a medication used by some of our workers and we need to know how to manage this. Legal drugs do have the potential to cause impairment and these include prescription drugs and over-the-counter medications such as pain killers, decongestants or marijuana. Much like other medication, a prescription for marijuana does not automatically give the employee a right to use it in the workplace. If impairment-causing drugs are used at work or during work, a risk develops. Workers are obligated to come to work with the ability to safely perform their work. If a worker is unable to do so, it is their responsibility to inform their employer that they are unable to perform their work safely and it is the employer’s responsibility to reassign work if necessary and accommodate accordingly (more on this below). It is also the responsibility of everyone in the workplace to report all safety concerns to their supervisor (such as smelling alcohol or marijuana on someone’s clothing or breath, or observing the unsafe operation of equipment).
Many would argue that even though patients have the right to access medical cannabis, it is in direct conflict with workplace safety. That may be true, but we are now forced to classify marijuana with alcohol and other legally prescribed medication.
RIGHT NOW we have the ability to detect and accurately measure alcohol consumption, whereas there is no reliable technology to measure the consumption of marijuana. Besides that, drug and alcohol testing are only allowable in certain circumstances…we’ve all been aware of the ongoing controversy and lawsuits over the past few years and that testing is often considered to be an invasion of privacy. The Alberta Human Rights and Citizenship Commission takes the following official position on drug testing: “It is discriminatory to test potential or existing employees for alcohol and other drug use if there is not a valid reason to test”. Keeping in mind that those who are impaired in safety sensitive positions (drivers, pilots, equipment operators, etc.) are committing a criminal offence.
Companies such as Cannabix Technologies, a Vancouver-based tech company, is presently developing tools for law enforcement and workplace detection of marijuana. Just last month, they issued a press release indicating they have successfully tested their prototype and will be testing more in the coming weeks.
Until such technology is developed, there is no way to accurately measure the degree of impairment of marijuana, we can only detect if there has been recent use. Current testing methods detect if THC is present, but not the level of potency. THC is said to remain in one’s system for weeks or even months after using it.
RIGHT NOW both alcohol and drug dependencies are protected under the grounds of mental and physical disability under the Alberta Human Rights Act (AHR Act). I don’t foresee this ever changing.
What this means is that an employer must provide accommodation to those employees who have a drug or alcohol dependency. An employer must examine all options to accommodate the employee’s disability up to the point of undue hardship. Drug and alcohol policies must be non-discriminatory. For example, a potentially discriminatory policy would be one such that suggests automatic termination would occur if an employee failed a drug or alcohol test, without the opportunity to assess if a disability is present or provide accommodation of an employee’s disability. An employer may not terminate an employee without exploring these options, otherwise the employee has the basis for a Human Rights complaint and the employer may face incredibly weighty consequences.
Employers are required to send the employee to a qualified professional for an assessment of the employee’s drug/alcohol use (are they dependent or not?) AND provide accommodation to the point of undue hardship ̶ such as allowing an employee to attend a treatment program, allowing for a leave of absence, offering a return to work plan, etc.
Recreational use of drugs or alcohol is not protected under the AHR Act. A recreational user is one who is not dependent or addicted to drugs or alcohol, they do not have a dependency and therefore do not have a disability. So yes, in Alberta you can absolutely terminate an employee for just cause, because of ‘inappropriate use of restrictive procedures’, but you had better be sure they do not have a dependency first.
So what about those in safety sensitive positions? Do we allow them back on the job if they are deemed to have a drug dependency? Only if the workplace is not put at risk. In some instances employers may opt to transfer the employee to another position. An employee can only successfully return to work if the they participate in the accommodation process and openly communicate with their employer about their status, continue to provide medical information to support they have a dependency, cooperate with the recommendations of the professional assessments, and allow for follow-up drug tests once they are fit to return to work.
So what’s next? Little information has been released from our federal government on the specific laws surrounding the legalization of marijuana, how it will be regulated, distributed, etc. On April 13, 2017, a statement issued by Enform (the safety association for the oil & gas industry’s upstream and midstream sectors in Canada) stated, “Enform is concerned with the impacts of marijuana on the safety of workers in safety sensitive work places”. Enform intends to continue to lobby governments to ensure the safety of workplaces are fully addressed prior to the legalization of marijuana. Enform’s President and CEO, Cameron MacGillivray expressed that, ‘there is well documented research to demonstrate cognitive impairments that can last for more than 24 hours and up to 20 days for chronic marijuana use. Marijuana use is incompatible with working in a safety-sensitive environment. Until there is clear evidence and a complete understanding of what level of impairment is deemed to be considered ‘safe’, a zero tolerance policy regarding the presence of marijuana is the only safe choice”. But I would assume that alcohol or other prescription meds will be treated similarly. Other than the extensive physiological affects, how we handle alcohol and marijuana use may be much the same. Just as we wouldn’t allow our employee to drink cocktails in their office or bring alcohol on the premises, the same will go for not permitting a joint to be lit up on the job. It will be interesting to see the new technologies developed and the human rights law surrounding those.
An employer’s right to maintain a safe workplace will always override someone putting the workplace at risk. Now is the time to review your existing substance abuse policies and implement a solid training program for your staff. As laws change surrounding the use of marijuana and testing technology is developed, these policies will most likely evolve in your organization. I will continue to monitor any developments, so stay tuned!
About Wendy Ferguson
Wendy Ferguson is an Alberta based Human Resources Generalist and Consultant with over 15 years of combined experience in the areas of HR, Business Administrative Management and Marketing.
She has worked within a broad range of industries, including: oil & gas, architecture, law, information technology, engineering, accounting and business consulting firms. She works with companies on both a full time and part time consulting basis to help them address their HR management, recruitment and policy needs.
She is also a Chartered Professional in Human Resources (CPHR). CPHRs are uniquely qualified to help you achieve your business goals. With proven expertise across nine key business metrics, a CPHR has the knowledge and the experience to address the factors that underpin the degree of your immediate and long term success.
For your HR requirements contact Wendy at [email protected]
Senior Management HR Advisory
Alberta Employment Standards