Marijuana and Workplace Safety:New Hazards on a Hazy Horizon?

Loretta Bouwmeester, Partner Wilson Chan, Associate

March 8, 2018

Session Overview

• Social standards changing...

• Cannabis – The Science and Medicine• What it is• What the medical profession tells us about it

• Cannabis – Workplace Safety Consequences

• Impairment as a Hazard

• Workplace Drug Testing

2

Sun Life Adds Medical Marijuana Option to Employee Benefits Plans• Sun Life cited medical evidence when adding medical marijuana

as an Extended Health Care benefit to a yearly maximum between $1,500 - $6,000

• Employees must meet Sun Life’s clinical criteria to be eligible, and pass through an approval process before claims are adjudicated (decided on)

• Option is currently available to patients with:• Cancer;• Multiple sclerosis;• Rheumatoid arthritis; and• AIDS

• Sun Life will conduct periodic reviews and amend the benefits plan accordingly

• Illustrates a trend toward coverage, even though expensive for the employer. • Employers will have to make this decision in the near future

4

Workplace Responsibilities

Employers, Prime Contractors and Workers all have a shared responsibility to:

• Protect the health and safety of workers and co-workers

• Protect the public and the environment

• Establish and comply with workplace policies

• Respect and comply with human rights and privacy legislation

o For workers, this includes cooperating in the accommodation process

o Prime Contractor obligations may differ

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Current Legal Landscape

Medical Use: Permitted now

• Can be legally prescribed by a doctor or nurse practitioner

• “Over the counter” availability is coming

• Access to Cannabis for Medical Purposes Regulations

Recreational Use: Prohibited now

…at least until “Summer” 2018 (no longer July 1st)

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A MEDICAL PERSPECTIVE ON CANNABIS IN THE WORKPLACE

DriverCheck slides compliments of Dr. Melissa Snider-AdlerDriverCheck Inc.

• Anything derived from cannabis plant

• Delta-9-tetrahydrocannabinol = THC

• Cannabidiol = CBD

• Influences Endocannabinoid system

o Appetite

o Mood

o Memory

o Pain sensation

What is cannabis?

• Not itself psychoactive

• Available in an OIL form

• Presence of THC in ALL AVAILABLE

• Will still test positive

• Low THC so less impairing but cannot state NO IMPAIRMENT

• OFTEN PURCHASED FROM DISPENSARY OR ILLEGALLY ON LINE – no quality control

Cannabidiol - CBD

WAYS TO OBTAIN CANNABIS IN CANADA

ACMPR

“medical marijuana”

Recreational cannabis –

Legal in ? JULY 2018

Illicit use/street use Dispensaries = illegal

crumble

honeycomb

shatter

DABS

EDIBLES…not yet

Marijuana – Out in Plain Sight? Edibles…R v. Smith, 2015 SCC 34

The numbers speak volumes

Medical Cannabis Users

What do physicians say about cannabis for medical purpose?

• Conflicting and, in some cases, absent evidence on the effectiveness and safety of marijuana

• Smoke is a hazardous delivery system

• Active ingredient can be prescribed as oral capsule or inhaled spray

• Weak evidence supporting analgesic effectiveness

College of Family Physicians of Canada

• No evidence to support use for pain

• Use for neuropathic pain in specific instances

• Not appropriate for anxiety or insomnia

• Physician responsible for managing care

College of Family Physicians of Canada 2014 Guidance Paper

• Compared to other medications, cannabinoids no better with more adverse events

• No difference in Quality of Life

• For most conditions (example anxiety), cannabinoid evidence is sparse (at best), low quality and non-convincing

TOOLS FOR PRACTICE – Alberta College of Family Physicians, November 2017

Is an authorization the same as a prescription?

Typical Prescription

Patient's Given Name and Surname:

Patient's Date of Birth (DD/MM/YYYY):

Daily quantity of dried marihuana to be used by the patient: grams/day

The period of use is day(s) or week(s) ormonth(s).

Note: The period of use cannot exceed one year

Health care practitioner's given nameand surname:

Profession:

Health care practitioner's business address:

21.5%

Used cannabis to get ‘high’ before or at work (last year)

39%

Driven under the influence of cannabis

(within 2 hrs)

39%

Passenger with driver under influence of

cannabis (within 2 hrs)

7.7%

Use cannabis to get ‘high’ before or at

work weekly or daily

23%

Full time/Part-time workers use cannabis

Canadian Cannabis Survey – 2017 9215 respondents – telephone and then survey through mobile phones

2017 marijuana stats

How does marijuana impair?

Euphoria and relaxation

Time distortion

Difficulty with divided attention

Cognitive impairments and

memory

• Experienced pilots trained on a flight

simulator

• Given one joint of marijuana (3.65%)

• Tested before, and 0.25, 4,8,24, 48 hours

after

• Significant impairment seen up to 24 hours

• 7/9 showed impairment at 24 hours

• ONLY ONE HAD AWARENESS OF THE

DRUG’S EFFECTS Leirer, V.O., Yesavage, JA., Morrow, DG., Marijuana Carry-Over Effects on Aircraft Pilot Performance. Aviat

Space Enciron Med. 1991 Mar;62(3):221-7

Marijuana and Pilot Performance

475,000 licensed Commercial Drivers in Ontario

2014 Ontario Roadside Alcohol and Drug Testing (oral fluid)

36% positive

for drugs

Over 70% due to cannabis

2014 Collision Data FATAL ACCIDENTS

30%

70%

10.2% positive for any drug

all other drugs

Cannabis

Ontario Driving and Cannabis

3 TYPES OF IMPAIRMENT

• Effects

• After-effects/residual

• Withdrawals

• Depends on the drug

• “high”

• “numb”

• Cognitive changes

• Attention

• Reaction time

ACUTE

• Hang-over

• Crash from cocaine/methamphetamine

• fatigue

• Comprehension issues

• Unclear mind

• Attention

• Reaction time

RESIDUAL

• Most severe with opioids

• Seen with cannabis, cocaine, methamphetamine

• Cognitive changes

• Attention

• Reaction time

• Concentration

WITHDRAWALS

Colorado Cannabis Canada

Colorado Department of Public Safety, March 2016Marijuana Legalization in Colorado: Early Findings

Cardholder growth

342,976 new patients have applied since the Registry began

Increase in last 30 day use (SAMHSA) pre and post

commercialization

• 18-25 year olds: 48% increase

• >26 years old: over 230% increase

What we can learn from Colorado

2009 2016

• Increase of 230% 2006 to 2012

• From 2013 to 2014 continue increase of 70% testing positive for delta-9-THC in blood

Positive testing and MVA fatalities

• Doubles car crash risk

• Cannabis use prior to driving increases the risk of being involved in a motor vehicle accident - substantial evidence of a statistical association

The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research Washington (DC): National Academies Press (US); 2017 Jan 12

Safety Summary

Legalization then what?

• Commercial vehicles = ZERO TOLERANCE

• No recreational use in the workplace

• No recreational use in public places

• Roadside testing includes oral fluid and then blood/serum levels

• No decisions are final yet…

Roadside Testing

Drug testing today

• POCT immediate result

• False positives urine – highly sensitive, lower specificity

• Qualitative vs. quantitative

• Reasons for false negatives…

– Around the cut-off

– Recent use

POCT and LAB TESTS

• THC metabolite positive for days to weeks in urine

• THC parent positive for hours in oral fluid

• NEITHER CONFIRM IMPAIRMENT ONLY TIMING OF USE

• Urine is still gold standard for risk-based programs (US DOT)

• Oral fluid growing in Canada due to up coming legalization

THC in urine vs. oral fluid

1. Medical evidence is still developing for use of cannabis

2. Many physicians who authorize cannabis do not consider

workplace safety issues

3. Impairment is a real concern for those in safety sensitive

positions

4. Potential for addiction is a concern, particularly for those

under 25

5. There are no tests of impairment, only of recent use and

LIKELY impairment

6. Just because something is authorized or prescribed does not

mean it is safe to use in the workplace

Summary

Cannabis and Workplace Safety

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Why does all of this matter?

• Workers’ lives matter

• Public Safety matters

• The Environment matters

• Economic/Reputational risks

• Regulatory – Licences to Operate

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Impacts of Cannabis on Work Productivity

• University College London conducted a study in 2016 demonstrating short-term effects of marijuana on human motivation

• Participants who had used marijuana recently were more likely to choose a low-effort test vs a high-effort test, even where the financial reward for the high-effort test was greater ($0.50 vs $2.00)• Control group participants chose the high-effort option 50% of the

time; where those who had used marijuana recently chose it only 42% of the time

• Participants who were dependent on marijuana, but had not used or consumed alcohol within the last 12 hours showed no differences in work motivation compared to the control group

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Regulatory Non-Compliance Consequences

• Orders - that may require operations to be carried out a certain way, stop work orders, or suspension of operations at more than one worksite

• Administrative Penalties – ex. in BC have a max penalty of $646,302.88 (2018) and $10,000 per day per offence in AB

• Prosecution - under OH&S legislation or the Criminal Code of Canada which may lead to unlimited fines or jail time for corporate representatives

• Negative publicity - related to large penalties/fines, orders, prosecutions

• Denial of future regulatory approvals or imposition of additional conditions - can interfere with operations

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Jail Time a Reality…

R. v. Sukhwinder Singh Nagra, November 1, 2017

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Sentencing Trends

Penalty Amounts ↑

Administrative and Court Ordered

Jail Time – Frequency ↑

Provincial OHS laws Criminal Code

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Why Does Safety Matter?

R. v. Metron Construction Corp. 2013 ONCA 541

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Cases Where Drug Use a Factor

R v Metron Construction Corp. 2013 ONCA 541

• 2009 Christmas Eve fatalities in Toronto while contractor restoring concrete on a high rise building

• 6 workers, 2 lifelines – swing stage collapses

• According to toxicology reports, three of the four deceased workers, including the site supervisor, “had marijuana in their system at a level consistent with having recently ingested the drug” at the time of the incident

See also: R. v. Kazenelson, 2015 ONSC 3639 – 3.5 yr jail sentence

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Cases Where Drug Use a Factor

R v Canadian National Railway, CarswellMan 118, [2003] 8 WWR 503

• Foreman of railway switch crew was killed at work when he fell off a rail car and was run over by its wheels

• Consumed cannabis within a few hours of shift starting (blood tests suggest possible impairment)

• “ It is not illogical to infer based on the evidence, that some of Kowalyk's inexplicable actions in terms of disregarding safety procedures prior to the accident might be explained by his possible impairment.”

• Employer charged, went to trial and was found not guilty of all counts as it had a due diligence defence

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Cases Where Drug Use a Factor

R v Reliable Wood Shavings Inc., 2013 ONCJ 518

• An operator of a blower truck was working alone when he began to transfer wood shavings from the silo into his truck, he was found inside the truck box, buried under saw dust and later died at hospital (not clear how injury happened)

• Marijuana was found in his blood – but no determination if the operator was suffering any type of impairment

• Employer charged and convicted on all counts but one

• Court found that employer can still be found guilty of OHS offence even if the precise mechanism of injury or death was unclear

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Cases Where Drug Use a Factor

R v Westcon Precast Inc., 2007 ABPC 143

• Employee responsible for operating crane and covering holes on the bottom surface of very heavy plugs with masking tape before lowering plugs into mould, did not ensure plug was properly attached to crane before going underneath plug to tape holes

• Plug fell on employee and crushed him resulting in fatality

• Autopsy showed use of cannabis during final hours of life

• Employer pleaded guilty to failing to ensure health and safety of employee and was sentenced to $5,000 fine, $750 VFS, and $195,000 payment to Manufacturers Health and Safety Association

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Safety-Sensitive

What does it mean?

• Evolving definition• Depends on position (involvement), context,

industry, particular workplace, policy• Position where employee has responsibility for

his/her own safety or the safety of others• A safety sensitive position is one in which

incapacity due to drug or alcohol impairment could result in direct and significant risk of injury to the employee, others or the environment

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Due Diligence = all reasonable care to prevent the violation

• Breach of OHS (and regulatory) obligations generally strict liability offences (vs. criminal liability or absolute liability)

• Deterrence rather than punishment model – Focus is on prevention of harm

• “Reasonably Practicable” - Due diligence is an important legal defense for a charge under occupational health and safety legislation

• Reverse Onus – once act proven, obligation (and opportunity) for employer to demonstrate that employer took all reasonable precautions, under the particular circumstances, to prevent injury or accident

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What is the Test?

• Due diligence is demonstrated by your actions before an incident occurs, not after the fact

• “Reasonable Person Test” - Would a reasonable peer in the industry have implemented the same measures or would they have taken greater precautions in a similar situation?

• Not required to be perfect or take every single precaution (although recommended)

• The Courts will look to what is suitable and rational in the particular circumstances

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Decision to Prosecute Due Diligence Action

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Source: Work Safe Alberta

Factors in Establishing Due Diligence Defense

• Foreseeability - Could a reasonable person have foreseen that something could go wrong?

• Severity – How severe is potential harm to worker(s)?

• Preventability - Was there an opportunity to prevent injury or incident?

• Control – Did the employer have any control over the circumstances that resulted in the incident?

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Best Practices

Know the (OHS) law (including Codes and Regulations) that apply to your industry/work and comply

Be proactive – PLAN DO CHECK ACT - REPEAT

Be aware of Industry Best Practices and Standards

Implement a safety management system to identify, evaluate, and control hazards

• Create checklists and written records to verify system

Implement/update effective written workplace policies, practices and procedures

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Best Practices

Conduct regular audits of safety practices and policies

Provide appropriate training and education to employees and supervisors

• Not only on task but of safety requirements and expectations (i.e. whether the employee is fit for work)

• Provide tools and support to report concerns safely and confidentially

Regularly retrain and provide refreshers on training

Be transparent and communicate safety hazards and requirements to employees

• Have regular safety meetings

• Engage Joint Health and Safety Committees/Safety Reps

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Best Practices

Monitor for compliance and adhere to progressive discipline for breaches of safety (Enforcement)

• This includes accident/incident investigation and reporting systems

Document, Document, Document…

• Forms basis of defense - without records of steps taken, very difficult to prove that they happened

Develop a safety first culture

• Need to have the buy-in of all stakeholders and commitment for effective implementation and ongoing operationalization

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Human Rights and Privacy vs. Workplace Safety?

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Human Rights Issues: Marijuana at Work

• Human rights law obligations with respect to employees who are recreational users v. those suffering from addiction

• How to accommodate employees with either an addiction or medical authorization to use cannabis

• Last Chance Agreements for those returning to work following rehabilitation/treatment

• Good news (finally!) from the Supreme Court of Canada and how to incorporate into your workplace

• Making sense of the 1,200 human rights caseson marijuana in last 5 years

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Disability Basics

• Most employers understand:• they cannot discriminate against employees who have a

physical or mental disability and • there is an obligation to accommodate employees with a

disability to the point of undue hardship

• Drug addiction has long been considered a disability, 18 years ago in Entrop v. Imperial Oil, 2000 CanLII 16800 the Ontario Court of Appeal accepted the Board of Inquiry’s finding that “drug abuse” is a “handicap” and is an "illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning."

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Yes

Somethin’ to Talk About…• Setting: In the near future – Recreational Marijuana has been

legalized

• Situation: Tom, a commercial bus driver that transports workers to construction sites, arrives at work, smelling like marijuana. HR gets “wind” of this and when asked if he had been smoking marijuana prior to his shift, he tells them that he has doctor’s orders to self medicate for back-pain. He has no prescription/authorization for marijuana or medical recommendations for its use

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Recreational v. User with Addiction

Recreational User• Uses occasionally for

fun or relaxation• Is not protected under

human rights law • No medical

authorization• Presently illegal, won’t

be soon• No duty for employer

to accommodate• Treat like employee

drinking alcohol recreationally at work

User with Addiction

• Addictive behaviour, a preoccupation with marijuana, compulsion to use, relapses

• May or may not have a medical authorization

• Is protected under human rights law

• Employer must provide reasonable accommodation to point of undue hardship

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Legalization will not change these 2 categories

Quiz: Recreational User or Addicted User?

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Recreational User v. Addicted User

• The challenge for employers is differentiating the recreational user from the addicted user

• Recreational users sometimes present as having an addiction if they are about to be disciplined or terminated from employment due to possession or impairment at work

• Addicted users sometimes deny their addiction and maintain they are only recreational users

• It is only through reviewing all the circumstances and medical evidence can you determine if an employee has a disability or is just a recreational user. Employers have a duty to inquire.

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Medical Marijuana v. User with Addiction

Medical Authorization(No Addiction)• Uses for treatment of

underlying medical condition which may or may not be a disability

• If a disability, duty to accommodate and protected under human rights

• Treat like employee who is prescribed painkillers

User with Addiction

• Addictive behaviour, a preoccupation with marijuana, compulsion to use, relapses

• May or may not have a medical authorization

• Is protected under human rights law

• Employer must provide reasonable accommodation to point of undue hardship

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Legalization will not change these categories

Somethin’ to Talk About…• Setting: Current

• Situation: Elmer, a crane operator who was recently diagnosed with cancer, voluntarily discloses to his immediate supervisor that he has a prescription for marijuana use and plans on using it to relax. How should the employer respond?

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Accommodating Employee with Addiction

• Hydro Quebec – SCC – 2008 test for prima facie discrimination

1.Is there a disability?2.Is the employee treated differently b/c of disability?3.Is the disability a factor (not the sole factor) in the adverse treatment?

• It is not whether it is impossible for the employer to accommodate the employee. No duty to change working conditions in a fundamental way but can the employer change the duties to enable employee to do work without undue hardship?

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Accommodation of Employees - Addiction

• Ensure all employees aware of policies

• Toleration of some absences, performance issues, consider how the addiction is impacting conduct and performance, caution before treating as disciplinary

• Referral to Employee Assistance Programs

• Providing a list of resources and addiction treatment options

• Access to a physician

• Most frequent: Time off (unpaid) to attend rehabilitation

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Return to Work Following Rehabilitation

• Information required to assess fitness for duty and details regarding treatment

• Possible administrative/medical leave until details provided

• Clear expectations on return to work (including unannounced or “random” testing)

• Watch for signs of impairment

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Last Chance Agreements

•Be cautious with use of Last Chance Agreements, unless carefully drafted they will not be upheld•Adjudicators will often give additional chances due to nature of addiction and frequency of relapse•Involve union/legal advice

•Conditions of return to work/last chance agreements may include:• Fit for duty clearance• Completion of treatment

program/rehab• Information regarding treatment

and compliance• Random, periodic testing for a

defined period• May be terminated for relapse

but must be assessed on case-by-case basis

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Medical Marijuana

If employee indicates they are using medical marijuana on doctor’s orders:

• Ask them to provide the medical authorization

• Review it carefully • If vague, employer can request

further information from authorizing physician including • dosage;• frequency;• manner of delivery (are there

options to smoking);• whether it will affect their ability to

operate machinery, etc.

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Stewart v. Elk Valley Coal, 2017 SCC 30

• Company policy required employees to disclose addiction issues and treatment offered without discipline, but if no disclosure and incident occurred and positive test resulted, employment would be terminated

• Employee had an accident operating loader; tested positive for cocaine and was terminated from employment

• UMW filed human rights complaint on behalf of employee

• Tribunal: no discrimination established, terminated for policy violation and disability was not a factor

• AB Court of Queen’s Bench and Alberta Court of Appeal –agreed with Tribunal and upheld termination

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Stewart v. Elk Valley Coal, 2017 SCC 30

• Important decision for employers as Supreme Court of Canada:

• Confirmed test for prima facie discrimination

• Rejected employee’s argument that his addiction prevented him from coming forward to disclose

• Rejected premise that addiction alone is sufficient to establish prima facie discrimination

• Confirmed previous decisions and upheld termination

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Stewart v. Elk Valley Coal, 2017 SCC 30

• Termination for impairment in workplace is not discriminatory!

• “No free accident rule” is enforceable

• Addiction alone not sufficient to establish prima facie discrimination

• Every employer should be reviewing its policies in light of this decision

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Summary• Under human rights law in Canada, employers have an

obligation to accommodate employees with marijuana addiction (a disability) and those who have a medical authorization for cannabis to treat another disability

• There are no human rights obligations regarding recreational users of pot

• It is not discriminatory to require employees to come forward to disclose addiction

• Employees who have an addiction yet fail to comply with policy may be terminated from employment

• Owners and Prime Contractors will expect employers to actively manage this issue

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Somethin’ to Talk About…• Setting: Current

• Situation: Jerry, a heavy duty machine operator, employed by Sylvester Contractor’s, was at a client worksite (Tweety Energy). Drug sniffing dogs employed by Tweety Energy detects traces of marijuana on his bag, in his assigned room, and decides to issue a site ban, prohibiting him from entering the worksite.

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Drug Testing Cases

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Drug Testing Suncor Energy Inc. v. Unifor Local 707A, 2017 ABCA 313

• Grievance filed over practice of random drug and alcohol testing for those in safety-sensitive positions

• Tribunal grievance allowed; random testing too invasive

• Alberta Court of Queen’s Bench – overturned Tribunal decision

• Alberta Court of Appeal – upheld QB decision and matter remitted to new arbitration panel; Tribunal incorrectly considered only evidence from bargaining unit

• Application for leave to SCC filed. ABQB issued injunction prohibiting Suncor from random testing, which will be in place until final decision rendered; injunction upheld by ABCA

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Drug Testing

Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078

• Implementation of fitness for duty policy that included random drug and alcohol testing

• Union grieved (prior to announcement of random testing) and arbitration began

• Union applied for interlocutory injunction to restrain implementation

• Application for injunction denied on the basis that testing would enhance public safety

84

Drug TestingTeck Coal Ltd (Fording Coal and Elkview Operations) and the United Steelworkers, Locals 7884 and 9346, 2018 CanLII 2386

• Company had faced prior resistance from its United Steelworkers Union (“the Union”) on random drug testing in 2012. The Union unsuccessfully appealed to the Labour Relations Board in 2013

• BC mining company’s mandatory random drug and alcohol testing program was struck down on basis that it was an unreasonable exercise of management rights given the necessity to balance the safety and privacy interests of the parties• The decision may be appealed• The decision referenced the Irving Pulp & Paper judgment

85

Drug Testing• Deciding factors:

• Unreasonable employee privacy invasion; and• Insufficient evidence of a “general” workplace problem

associated with drugs and alcohol to justify privacy intrusion

• Arbitrator found that employees in safety sensitive workplaces do not have a diminished expectation of privacy

• Arbitrator found no general workplace problem:

• despite a number of current and former employees testifying to drug and alcohol problems;

• and the employer’s failure to produce “hard evidence” prior to the Random Testing Program, which illustrated a culture of drug and alcohol use tied to increased safety incidents

86

Drug Testing

IBEW 1620 v. Lower Churchill Transmission Construction Employers’ Association, 2016 CanLII 33981 (NL LA)

• Employee terminated after admitting medical marijuana use at safety-sensitive, dry camp

• Clear policy regarding immediate termination

• Arbitration – termination upheld

• Supreme Court – actions warranted misconduct but termination excessive; issue of termination remitted back to Arbitrator

• 2nd Arbitration – just cause not established; employee reinstated without pay.

87

Fitness for Duty Policies

• Can prohibit use, possession and impairment at work

• Marijuana treated similarly to alcohol and other prescription or over-the-counter drugs with impairing effects

• Update policies

• Distinguish between medical marijuana use and recreational use

• Focus on impairment and fitness for duty

88

Fitness for Duty Policies

• Policies should address:

• Impairment;• Fitness for duty;• Obligations of employees;• Disclosure;• EAP;• Protocols and procedures for testing; and• Accommodation.

• Employee must be aware of policies and policies should be enforced

• Consider other policies i.e. smoking or scent policies

89

Management and Supervisor Training

• Signs of impairment:

• Smell of marijuana;• Red/glossy eyes;• Slurred/mumbled speech;• Unsteady gait;• Confusion;• Unusual behaviour;• Decrease in concentration;• Heavy eyelids; and/or• Dilated or constricted pupils

• Documentation is critical

• One sign will likely not be enough

90

Management and Supervisor Training

• Terms of the policy

• Zero tolerance• Reporting requirements for employees• Confidentiality• Chain of communication• Medical marijuana use vs. recreational use• Safety-sensitive vs. non-safety sensitive• Reasonable suspicion, post-incident, near miss• Timeliness for testing

• Focus on impairment and hazards of impairing substances not the specific source (i.e. only marijuana)

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Management and Supervisor Training

• Protocols and procedures

• Who investigates

• How investigation should proceed

• Who to turn to for guidance on facilitation of policy

• What to do when impairment suspected

• Whether testing is required

• Discipline

• Accommodation

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Impairment at Work

• Keep an eye out for evidence of impairment

• Workplace accident

• Near miss

• Tip

• “Reasonable suspicion” – document basis for this

• Step 1 – Ensure immediate safety

93

Impairment at Work

• Step 2 – Get a second opinion

• Step 3 – Speak with employee confidentially and remove them from imminent danger or work area as discretely as possible

• Step 4 – Assess the situation depending on employee’s fitness for duty• If no concerns, document and return to work• If concerns, document, test (maybe), arrange for safe

transportation

• Step 5 - Investigate

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Impairment at Work

• Step 6 – Determine type of use and whether discipline is appropriate

• Non-culpable – Medical use and addiction

• Duty to accommodate

• Potential leave of absence

• Confirmation of disability (addiction) or use of medical marijuana

• Safety-sensitive position or not

• Return to work or last chance agreement

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Impairment at Work

• Culpable – Recreational use

• Substance abuse assessment

• Review of disciplinary record

• Determined appropriate discipline

• Issue discipline in writing

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97

Thanks to Sarah Smith, Mathews Dinsdale, Toronto

Cannabis Possession at Work

• Just because marijuana is legal doesn’t mean employees can bring it to work and use at work! Alcohol is legal but not (usually) permitted at work

• Possession can be prohibited unless employee has as part of an approved accommodation plan

• Investigation may result in searches where possession is suspected, you should consider:• Policy;• Consent;• Whether justified and reasonable;• Privacy concerns;• Whether conducted in a systematic, non-discriminatory

manner; and• Union involvement

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Legalization: Workplace Safety

Recreational marijuana can be treated in substantially the same way as alcohol under employer’s fitness for duty or drug & alcohol policy

• BUT taking into consideration that there could be accommodation for addiction/medical use

• Example: Employers can prohibit non-medical use during work hours and prohibit employees being at work while impaired (or “hungover”)

Violations can be subject to progressive discipline, up to and including termination for just cause

99

Legalization: Key Takeaways

Be proactive

Implement/update a fitness for duty or drug & alcohol policy to address recreational marijuana

• Remember: not one size fits all

Educate employees on being fit for duty

• whether position is safety-sensitive or not

Train supervisors and workers on policy requirements and to detect impairment in others

• provide tools and support to report concerns safely and confidentially

• Ensure that there is an employee assistance program (EAP) in place

100

Legalization: Key Takeaways

Remember your duty to accommodate

• Employees with legitimate underlying health concerns can be managed in a number of ways:

o leave of absence

o alternative treatment/rehabilitation

o temporary reassignment

• But an employee has to first disclose the need (Burton v. Tugboat Annie’s Pub and Stewart v. Elk Valley Coal Corporation)

Effectively manage privacy issues (FOIP, PIPA, PIPEDA)

• Understand and take steps to protect the confidentiality of medical information

101

Additional Resources

COS Magazine

• http://www.cos-mag.com/ohs-laws-regulations/columns/get-ready-for-marijuana-legalization/

Construction Owners Association of Alberta (COAA)

• https://www.coaa.ab.ca/library/canadian-model/

Government of Canada – Health Effects

• https://www.canada.ca/en/health-canada/services/substance-abuse/controlled-illegal-drugs/health-risks-of-marijuana-use.html#s1

Canadian Centre for Occupational Health and Safety (CCOHS)

• http://www.ccohs.ca/products/publications/cannabis/

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How Can We Help You? Coast to Coast

Review of your current Drug & Alcohol policy and recommend updates for post-legalization and decisions like Elk Valley Coal

Medical and Legal review of files (in-house physician) Review of safety sensitive classifications Working with your safety team to avoid accidents Defence of OH&S/Criminal Code charges with our team of

former prosecutors and OH&S specialists Review your accommodation policy and provide best practices Assistance with discipline and/or termination for breach of drug

and alcohol policies Advising on post-rehab return and Last Chance Agreements Manager and Supervisor Training Representation at labour arbitration Defence of human rights complaints Wrongful dismissal litigation

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Questions?Loretta BouwmeesterPartnerT 403-538-5042F 403-538-5049lbouwmeester@mathewsdinsdale.com

Wilson ChanAssociateT 403-351-1115F 403-538-5049wchan@mathewsdinsdale.com