Do you know how your employer will handle drug testing once recreational marijuana becomes legal this summer? What about if they suspect someone is intoxicated at work? Labour lawyers are urging businesses to set up their cannabis guidelines now to avoid confusion for themselves and their workers.
Marijuana Will Create a Grey Area at Work
With recreational marijuana’s impending legalization, human resources (HR) experts are predicting a surge of cases where employees are impaired at work. However, without a legal definition of cannabis-related impairment, it's nearly impossible to create new policies that keep the rights of all parties in mind.
Decreased productivity, poor attendance and safety issues are among the top concerns for employers, but there are some nuances to the federal law allowing recreational marijuana that are considered a grey area.
Once recreational cannabis use becomes legal, the “smoke break” could, for example, become a point of contention between employer and employee. Experts suggest that it's the sectors where safety issues are less of a concern—deskwork and retail sales among them—that might be less prepared for the possible fallout of legalization, slated to take effect this summer.
How Can Companies Accurately Test for Marijuana Intoxication?
One of the most significant unknowns for HR professionals seems to be around recognizing impairment—and there are a lot of questions:
- Can an employee be tested for cannabis use even if it's not the company's typical policy?
- If so, how will an employee be disciplined for a positive marijuana test?
- How can cannabis use be accurately monitored in conjunction with job performance?
- Will there be tests accurate enough to show if someone has used the drug within hours of their shift?
Right now there’s no reliable way to test impairment by marijuana. Urine and saliva can be used to detect the presence of tetrahydrocannabinol (THC), the psychoactive cannabinoid in cannabis, but it doesn’t necessarily indicate impairment. Plus, it can take between 24 and 48 hours for the human body to rid itself of THC. So, legal recreational cannabis enjoyed over the weekend could render a positive test at work on Monday—even if the individual is completely sober at that point.
“This study points to the Ross Rebagliati hypothesis—there is a possibility that it is entirely possible to have THC levels within a non-smoker from just being exposed to smoke in a closed area,” said Fiona Clement, the principal author of the study.
Ross Rebagliati was the first Olympic gold medalist in men’s snowboarding at the 1998 Winter Olympics in Nagano, Japan. His medal was taken away from him after THC was found in his system during a drug test. He was later given back the medal after claiming that he was exposed to second-hand marijuana smoke during a party held before the games. (It’s also worth noting that marijuana wasn’t listed as a banned substance anyway.)
Are Canadians Onboard With Random Cannabis Tests?
Whether it’s right and lawful to randomly drug test workers is a major point of contention leading up to legalization—and Canadians seem to be split on the issue.
In Alberta's oilsands, a union representing 3,000 workers won a court injunction against random drug testing by a major employer, Suncor Energy. The judge stated that the privacy rights of employees are just as important as safety concerns are.
But special decisions like this aren’t stopping employers and employees from exploring their rights and options. Employment lawyers saw a spike in queries about random drug tests after a Superior Court judge allowed the Toronto Transit Commission to randomly drug test its employees earlier this year.
A Probe Research sampling of 1,000 adult Manitobans concurs overwhelmingly with the latter conclusion—73% of respondents said they agreed with administering workplace tests, 24% disagreed with the idea, and 4% were unsure.
How Can Companies Protect Safety & the Rights of Employees?
The Canadian Union of Public Employees cautions employers from using cannabis legalization as an excuse to pursue punitive measures around random drug testing, which is rarely permitted and requires a high legal bar in order to protect workers’ human rights.
Experts advise employers to use common sense and to seek out possible signs of cannabis use including odour, appearance and pupil dilation. In an office environment, a perceived drop in productivity could be another sign, but the connection must be clear—not a sign of addiction, which is considered a disability and not connected to the medicinal use of marijuana. Additionally, employers need to know there are different strains of cannabis, such as those that contain mostly cannabidiol (CBD) and impart little to no psychoactive effects.
The bottom line for Canadian companies is to work out their cannabis policies now and give employees plenty of time to review and understand what is and what isn’t acceptable when it comes to marijuana use and their job responsibilities.
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