TRURO – With recreational marijuana use legalized two months ago, businesses still have questions on usage in the workplace.
The Truro and Colchester Chamber of Commerce hosted a discussion earlier this month regarding cannabis in the workplace, and brought in representatives to try and provide more information.
Panel members included Kymberly Franklin, a solicitor with the Human Rights Commission; Starla Sheppard, Labour Standards officer; and Scott Nauss, the senior director of Inspection and Compliance with the Occupational Health and Safety Division.
Nauss said cannabis impairment has been on the radar of the Occupational Health and Safety Division for the last two years, as word started floating around about the legalization of the substance. The division, he said, has been developing educational materials on the topic.
Many employers have been dealing with medical marijuana for a while now, but it’s a new game now that recreational use has been legalized. Questions popped up about accommodating users.
“With marijuana use, medical and recreational are very different,” Franklin explained to those gathered at the discussion. “There are different types of marijuana, and for medical users, the THC is usually non-existent, or very low. Therefore the supposed impairment isn’t present.”
She said employers are able to request a fitness assessment for those employees using medicinal marijuana if there are safety issues. Doctors, she said, are able to complete the fitness assessment specific to the employee and the job they’re required to do.
“When it comes to accommodation in terms of usage, that’s usually regulated by the prescribing doctor,” she said. “You can request information as to when and why they’re using, and in what form. As an employer, you have to accommodate that.”
For example, those who may need to smoke cannabis, Franklin said employers would need to accommodate the user with a place to smoke it away from others. Employers, she said, may need to be creative with their accommodations.
“But it’s better to work with the person, that way it will have less of an impact on the run of the business.”
Nauss said not all jobs are equal, and it’s up to the employer to do a hazard analysis. Some jobs, he said, are more safety sensitive than others, for example those operating heavy machinery, driving forklifts, or using chainsaws.
“You really need to monitor those in high risk situations,” he said.
The panelists were questioned about workplace policies, and if it’s sufficient to apply already existing alcohol-related policies to cannabis.
Franklin said trying to adapt an alcohol policy to marijuana use can be a mess. She advised not to combine the two, instead creating two separate policies.
“If you do it upfront and education your employees, the liability is less on your part,” she said. “But you also need to follow it yourself, otherwise it’s useless.”
She said all employees need to have knowledge on the policy, and the onus for that is on employers.
“Make sure you put that policy out there, and make sure they understand it,” she said.
The Occupational Health and Safety Act, said Nauss, speaks to having policies and procedures in place, and said employers also should be monitoring and documenting.
“It proves your own due diligence if something bad happens,” he said, about having documentation.
Sheppard said they often see instances at Labour Standards where procedures and policies aren’t followed.
“If the employer keeps giving an employee chance after chance, they don’t think their job is in jeopardy,” she said. “You can’t terminate them after it’s been a problem for two years and you did nothing about it. Make sure that employee knows their job is in jeopardy.”
Some attendees questioned whether or not the business could have a no consumption policy in the workplace, to which they were told yes. If that policy also included random drug testing, impairment on the job would also have to be looked at.
“Having a drug policy is a good thing,” said Franklin. “The thing with marijuana is that it metabolizes different with everybody. It’s not like an alcohol impairment test where you blow into the device and it comes back saying you’re impaired. There are different signs of impairment. The best thing to do is speaking to a medical professional.”
Franklin explained what’s difficult with cannabis is there aren’t any levels of impairment yet. She gave an example of herself driving for 12 hours, through the night and going to work on no sleep. Her eyes, she said, would be red. That could be a sign of impairment, but that’s not enough.
“Maybe if I had glassy eyes, slurred speech, and I was stumbling around. But there’s no time limit on impairment levels yet, and that’s the unfortunate thing.”
She said the best thing any employer can do is have some sort of policy in place, which would help reduce liability.
“You have to follow it uniformly,” she said. “If you’re going to have a policy, follow it uniformly. By doing so, that strengthens that policy.”
When it comes to potential employees, it was asked if employers were allowed to ask during an interview what drugs the interviewee may be on.
Franklin said overall, no, however the employer has the obligation to make sure whoever they’re hiring is capable to do the job being hired for.
“Ask for a fitness assessment. Do a complete analysis of what the job entails and get the doctor to do the assessment.”
Nauss said employers and employees both have rights and responsibilities, and that it’s the employee’s responsibility to report to their supervisor if there is any hazard in them doing their job.
“Impairment and legalization is not going to affect the good employees,” he said. “It’s the folks who have inadequate policies and procedures that I worry about. If you have good policies and procedures in place, it makes the workplace safer. It’s scientifically proven. You need to make sure everything is documented so you can show you did your part as an employer.”