October 9, 2018
I was gonna go to work, but then I got high
By Myscha Stafford
LO Membership and Chapter Coordinator
As of October 17, some Canadians may have a new meaning for the phrase, ‘Green for Life.’ The date for the legalization of recreational marijuana is looming and while recreational cannabis in the workplace will still be considered illegal, exemptions will have to be made for employees that have a prescription for medicinal marijuana.
According to Statistics Canada, “Cannabis consumption for medical use has more than tripled since the middle of 2016”(1). It is being used to treat chronic pain, glaucoma, migraines and a broad spectrum of mental health issues. It is very likely that at least one of your employees may have a prescription for medical cannabis.
Prescribed or not, a zero tolerance policy is in place for all workers responsible for operating a commercial vehicle or construction equipment. Safety is the number one priority, and being under the influence of cannabis on the job site carries the same penalty as impairment by alcohol. Prescribed medical cannabis users can still face penalties if a police officer determines that their driving ability has been impaired; it is the individual’s responsibility to determine their level of impairment and ensure that it is safe for them to drive(2). While the government has outlined possible side effects of cannabis, impairment has no definition and can differ between individuals. It is recommended that employers observe staff behaviours to recognize possible impairment in their staff (behaviours that are not considered the norm for the individual).
It is safe to say that this budding legislation will have many revisions over the next year. The reality is that this is a new area to navigate and laws and regulations will change as new situations arise and new precedents are set. We are already seeing this in a case involving the Toronto Transit Commission (TTC) where a subway operator with a prescription for marijuana was given the ultimatum of not using cannabis to keep her position, or keep using and change to a “non-safety-sensitive” position which would come with a sizeable pay cut.(3) Is this fair? Should an employee be subject to a lower paying position because of their health, or, should an employer accommodate (within reason), to maintain a role at the same level and same pay? While the safe operation of a motorized vehicle and a non-impaired driver is prudent here (as in your own businesses), there is arguably a lot of grey area in this matter. What impairment may look like can differ between individuals, their prescription dosage, the strain of cannabis or how they are administering the drug.
If you have an employee that has been prescribed medicinal marijuana, you as the employer have the duty to accommodate that individual to the point of undue hardship as per the Canadian Human Rights Act. Unfortunately, undue hardship also has no clear definition and is examined on a case-by case basis. To protect your business, workplace policies should be outlined and include a definition of what the employer considers impairment (without infringing on the rights of an employee). This is where your employee manuals and policies must be kept up-to-date. Educating yourself as a business owner, educating your staff, and keeping your Joint Health and Safety Committee members trained will be key factors to success.
Over the next few months, Landscape Ontario and its partners will have many opportunities to educate you and your staff on these new regulations through local chapter meetings and seminars. Workplace Safety and Prevention Services (WSPS) and the Canadian Centre for Occupational Health and Safety have produced terrific resources on workplace strategies for dealing with cannabis. If you have specific questions, this would be a great opportunity to take advantage of the telephone legal advice service available exclusively to LO members.
(1) cbc.ca/news/business/marijuana-spending-1.4797651
(2) mto.gov.on.ca/english/safety/impaired-driving.shtml#novice
(3) cbc.ca/news/canada/toronto/medical-marijuana-ttc-subway-driver-opoids-pain-1.4827525
Myscha Stafford can be reached at myscha@landscapeontario.com or 1-800-265-5656 ext.2333.
LO Membership and Chapter Coordinator
As of October 17, some Canadians may have a new meaning for the phrase, ‘Green for Life.’ The date for the legalization of recreational marijuana is looming and while recreational cannabis in the workplace will still be considered illegal, exemptions will have to be made for employees that have a prescription for medicinal marijuana.According to Statistics Canada, “Cannabis consumption for medical use has more than tripled since the middle of 2016”(1). It is being used to treat chronic pain, glaucoma, migraines and a broad spectrum of mental health issues. It is very likely that at least one of your employees may have a prescription for medical cannabis.
Prescribed or not, a zero tolerance policy is in place for all workers responsible for operating a commercial vehicle or construction equipment. Safety is the number one priority, and being under the influence of cannabis on the job site carries the same penalty as impairment by alcohol. Prescribed medical cannabis users can still face penalties if a police officer determines that their driving ability has been impaired; it is the individual’s responsibility to determine their level of impairment and ensure that it is safe for them to drive(2). While the government has outlined possible side effects of cannabis, impairment has no definition and can differ between individuals. It is recommended that employers observe staff behaviours to recognize possible impairment in their staff (behaviours that are not considered the norm for the individual).
It is safe to say that this budding legislation will have many revisions over the next year. The reality is that this is a new area to navigate and laws and regulations will change as new situations arise and new precedents are set. We are already seeing this in a case involving the Toronto Transit Commission (TTC) where a subway operator with a prescription for marijuana was given the ultimatum of not using cannabis to keep her position, or keep using and change to a “non-safety-sensitive” position which would come with a sizeable pay cut.(3) Is this fair? Should an employee be subject to a lower paying position because of their health, or, should an employer accommodate (within reason), to maintain a role at the same level and same pay? While the safe operation of a motorized vehicle and a non-impaired driver is prudent here (as in your own businesses), there is arguably a lot of grey area in this matter. What impairment may look like can differ between individuals, their prescription dosage, the strain of cannabis or how they are administering the drug.
If you have an employee that has been prescribed medicinal marijuana, you as the employer have the duty to accommodate that individual to the point of undue hardship as per the Canadian Human Rights Act. Unfortunately, undue hardship also has no clear definition and is examined on a case-by case basis. To protect your business, workplace policies should be outlined and include a definition of what the employer considers impairment (without infringing on the rights of an employee). This is where your employee manuals and policies must be kept up-to-date. Educating yourself as a business owner, educating your staff, and keeping your Joint Health and Safety Committee members trained will be key factors to success.
Over the next few months, Landscape Ontario and its partners will have many opportunities to educate you and your staff on these new regulations through local chapter meetings and seminars. Workplace Safety and Prevention Services (WSPS) and the Canadian Centre for Occupational Health and Safety have produced terrific resources on workplace strategies for dealing with cannabis. If you have specific questions, this would be a great opportunity to take advantage of the telephone legal advice service available exclusively to LO members.
(1) cbc.ca/news/business/marijuana-spending-1.4797651
(2) mto.gov.on.ca/english/safety/impaired-driving.shtml#novice
(3) cbc.ca/news/canada/toronto/medical-marijuana-ttc-subway-driver-opoids-pain-1.4827525
Myscha Stafford can be reached at myscha@landscapeontario.com or 1-800-265-5656 ext.2333.