Cannabis in the Workplace Patrick J. Delaney, MBA, CRSP Vice President Health and Safety Petroleum Services Association of Canada

Transcription

1 Cannabis in the Workplace Patrick J. Delaney, MBA, CRSP Vice President Health and Safety Petroleum Services Association of Canada Health and Safety Conference Society of Alberta Banff, October 27, 2017

2 Workplace Safety The legalization of the recreational use of cannabis will effectively make cannabis like alcohol in the workplace, which means that it does not need to be accommodated

3 The Federal Task Force on Cannabis Legalization and Regulation In the 2015 Speech from the Throne, the Government of Canada committed to legalizing, regulating and restricting access to cannabis noting that the current approach to cannabis prohibition is not working: Youth continue to use cannabis at rates among the highest in the world Thousands of Canadians end up with criminal records for non-violent drug offences each year Organized crime reaps billions of dollars in profits from its sale Most Canadians no longer believe that simple cannabis possession should be subject to harsh criminal sanctions and support the Government s commitment to legalize, tax and regulate cannabis

4 The Federal Task Force on Cannabis Legalization and Regulation June Discussion Paper Toward the Legalization, Regulation and Restriction of Access to Marijuana designed to support consultations led by the Task Force Among the public policy objectives that a new regime for legal access to cannabis must achieve are: Protect young Canadians by keeping cannabis out of the hands of children and youth Keep profits out of the hands of criminals, particularly organized crime Reduce the burdens on police and the justice system associated with simple possession of cannabis offences

5 The Federal Task Force Prevent Canadians from entering the criminal justice system and receiving criminal records for simple cannabis possession offences Protect public health and safety by strengthening, where appropriate, laws and enforcement measures that deter and punish more serious cannabis offences, particularly selling and distributing to children and youth, selling outside of the regulatory framework and operating a motor vehicle while under the influence of cannabis

6 The Federal Task Force Mandate to consult and provide advice on the design of a new legislative and regulatory framework for legal access to cannabis, consistent with the Government s commitment to legalize, regulate, and restrict access. Engaged with provincial, territorial and municipal governments, experts, patients, advocates, indigenous governments and representative organizations, employers and industry Online public consultations that generated nearly 30,000 submissions

7 The Federal Task Force Report published December 13, 2016 Report Chapters: Minimizing Harms of Use Establishing a Safe and Responsible Supply Chain Enforcing Public Safety and Protection** Medical Access Implementation

8 Enforcing Public Safety and Protection The Task force considered the scientific and legal complexities surrounding cannabis-impaired driving and made the following recommendations to the federal government: Invest immediately and work with the provinces and territories to develop a national, comprehensive public education strategy to inform Canadians of: o The dangers of cannabis-impaired driving, with special emphasis on youth, and o The applicable laws and the ability of law enforcement to detect cannabis use Invest in research to better link THC levels with impairment and crash risk to support the development of a per se limit

9 Enforcing Public Safety and Protection Determine whether to establish a per se limit as part of a comprehensive approach to cannabis-impaired driving Support the development of an appropriate roadside drug screening device for detecting THC levels and invest in these tools

10 Legalization of Recreational Cannabis On April 13, 2017 the federal government introduced legislation to legalize the use of recreational cannabis The legislation will allow adults 18 years of age and older to legally buy and cultivate small amounts of cannabis for personal use

11 Legalization of Recreational Cannabis The new law will allow adults to possess up to 30 grams of dried cannabis or its equivalent in public, share up to 30 grams of dried cannabis with other adults, and buy cannabis or cannabis oil from a provincially regulated dealer

12 Legalization of Recreational Cannabis Adults will also be permitted to grow up to four plants per residence for personal use, as well as make legal cannabis-containing products at home The government intends to bring other products including cannabis infused edibles into the legalized sphere once federal regulations for production and sale are developed and brought into force

13 Legalization of Recreational Cannabis The existing program for access to medical marijuana will continue as it currently exists Regulated limit of THC in a driver s blood stream Roadside saliva test will be conducted to help determine impairment

14 Effects of Cannabis The acute effects of cannabis include: Euphoria and relaxation Changes in perception Time distortion Deficits in attention span and memory Body tremors Impaired motor functioning

15 Cannabis Cannabis impaired driving is a complex issue that requires coordinated and multi-disciplinary action across law enforcement, transportation and health agencies The pervasiveness of messages from pro-cannabis groups has made it more challenging for road safety messages to be heard The cannabis lobby has been very vocal in touting the health benefits of cannabis, and the general public is largely unaware of the potential risks or negative effects on brain development among youth Traffic Injury Research Foundation (2016)

16 Cannabis Prevalent misconceptions include: Cannabis is not harmful Cannabis does not impair driving ability Police are unable to detect cannabis-impaired drivers or remove them from the road Traffic Injury Research Foundation (2016)

17 Cannabis Use and Driving The report Clearing the Smoke on Cannabis Cannabis Use and Driving - published in 2015 by the Canadian Centre on Substance Abuse the CCSA notes the following: Marijuana slows reaction time, impairs short-term memory and concentration and causes drivers to vary speed or to wander Cannabis effects a wide variety of cognitive and motor tasks Studies on driving performance (both simulated and on-road) show increased variability in lateral position in the lane, following distance, and speed as a function of cannabis use

18 Cannabis Use and Driving Cannabis use also impairs performance on divided attention tasks those tasks that require the ability to monitor and respond to more than one source of information at a time Cannabis compromises the ability to handle unexpected events such as a pedestrian darting out on a roadway Combining cannabis with even small amounts of alcohol greatly increases the negative effects on driving skills

19 Cannabis Use and Driving Cannabis doubles the risk of crash involvement Research demonstrates that drivers who have been using cannabis in combination with alcohol are at significantly greater risk of collision Detection and assessment of cannabis use among drivers are considerably more complex than for alcohol

20 Cannabis Use and Driving There is compelling evidence in support of the notion that marijuana, like alcohol and opioids can impair skills required for safe driving. Marijuana in the Workplace

21 Cannabis Use and Driving it is well known that exposure to (cannabis) impairs psychomotor performance and patients must be warned not to drive or operate complex machinery after smoking or eating cannabis or consuming psychoactive cannabinoid medications. Health Canada Information for Health Care Professionals (2013)

22 Cannabis Use and Driving 40% of polled Canadians who have driven under the influence of cannabis reported they believe there was no impact on their ability to drive safely (State Farm survey May 2016)

23 Cannabis Use in the Workplace An article Marijuana in the Workplace published in the December 2016 Canadian Journal of Addiction notes the following: the cognitive skills required for safety-sensitive work tasks overlap to varying degrees with those required to safely operate a vehicle. Driving may be viewed as a proxy for determination of levels of impairment for other safety-sensitive duties. The required cognitive skills and capacities include unimpaired alertness, attention, concentration, coordination, reaction time, memory, ability to multi-task, perceptual abilities, thought processing, judgement, and insight.

24 Cannabis Use in the Workplace There are risky, persistent neurocognitive impacts that can linger for up to 20 days for chronic users The impairment effects cannabis can last well beyond 24 hours after single use and can persist for up to 20 days in the case of chronic use and pose an unacceptable risk in dangerous, complex operations Health Canada notes that cannabis use is associated with a sevenfold estimated risk of being involved in a fatal accident

25 Cannabis Use in the Workplace The World Health Organization has concluded that a return to a non-intoxicated states does not ensure a full return of neurocognitive function in the workplace and has concluded that the use of cannabis for medical reasons means that ensuring safety of workers who are under the influence or who recently consumed cannabis is not possible Dan Demers, CannAmm Occupational Testing Services

26 Cannabis Use in the Workplace The WHO has also concluded that there is ample evidence that neurocognitive impairment from cannabis persists from hours to weeks and that recently abstinent cannabis users )several to 20 days) may experience impairment in attention, concentration, inhibition and impulsivity during the period in which THC (and other substances) are eliminated. Demers

27 Statistics - Canada By December 31, 2016, Health Canada reported 129,876 Canadians were registered to legally use and posses cannabis. That is a 227% increase from December ,000 Canadians will be using medical cannabis in some form by million cannabis users in Canada (University of Ottawa study) Across Canada, the Traffic Injury Research Foundation (TIRF) found that 40 per cent of drivers who died during 2012 tested positive for drugs

28 Statistics - Canada In 2015 nearly half of all 24 hour licence suspensions in Alberta were due to drug impairment Alberta is slightly above the national average for drugged driving at 41 per cent. 82 drivers killed in collisions during 2012 tested positive for drugs Research by TIRF indicates that 28.5% of fatally injured drivers whose blood tested positive for cannabis in 2012 were between the ages of 16 and 34; 21.2% were 35 to 49; 10.6% were 50-64; and 1.3% were 65 or older

29 Statistics - Canada The presence of cannabis in drivers killed in road crashes has increased from 13% to 20% (State Farm survey) Cannabis and depressant drugs each accounted for 29 per cent of all drug evaluations conducted in 2013 (International Association of Chiefs of Police 2014)

30 Statistics United States In Washington State, fatal crashes among drivers who tested positive for cannabis doubled from 8% in 2013 to 17% in 2014 In Colorado the numbers of drivers in fatal crashes who tested positive for cannabis without other drugs in their system tripled between 2005 and 2014 from 3.4% to 12.1%

31 Statistics United States Positive tests for cannabis use continued to climb in both federally mandated, safety-sensitive workplaces, such as transportation and nuclear plants and general U.S. workforces according to a study released in May 2017 by Quest Diagnostics Inc. Colorado and Washington saw some of the biggest leaps in positive cannabis tests for workers in safetysensitive jobs 27% from 2015 to 2016 in Colorado, and 19% in Washington

32 Statistics United States Recreational use of cannabis in both of those states was legalized in 2014 Cannabis is surpassing alcohol in fatal crashes Jurisdictions that have implemented laws that permit the use of cannabis have reported an unprecedented increase in hospital emergency room admissions to due psychotic episodes (Globe and Mail 2016)

33 The Colorado Experience (Retail sales of marijuana began in 2014) Marijuana traffic-related deaths in one year Marijuana traffic-related deaths ( ) THC toxicology results for DUI on one year Marijuana-related emergency room visits in one year Marijuana-related hospitalization in one year +32% +92%* *compared to an 8% increase across all traffic deaths +45% +29% +38%

34 Impaired Driving The Task Force noted that the issue of cannabis-impaired driving generated a great deal of concern and discussion There is uncertainty as to the most appropriate course of action owing to the lack of scientific evidence on some aspects and lack of means to reliably assess impairment at the roadside Roadside testing tools to measure THC presence in a driver s system are in development Oral fluid screening devices are the most advanced today (and have the added advantage of signaling recent use)

35 Impaired Driving Investment in research to link THC levels to impairment and crash risk is required to support the establishment of a scientifically supported per se limit Investments are required to support the development of accurate and reliable roadside testing tools A particular challenge with a per se limit is that it implies that it is acceptable to consume up to the established limit yet there is no evidence to suggest there is an amount of THC that can be consumed such that it remains safe to drive

36 Impaired Driving Medical cannabis patients expressed concerns to the TF about how a per se limit could negatively affect them and sought special consideration Cannabis-impaired driving should continue to be dealt with through federal criminal law, including more serious penalties for impaired driving causing injury or death To deter cannabis-impaired driving among youth and new drivers, provincial and territorial governments should consider implementing a policy of zero tolerance for the presence of THC in the system of new or young drivers

37 Per se Laws A law that prohibits the operation of a motor vehicle at or above a specific level of THC that is present in a person s system and indicative of impairment Some jurisdictions have opted to set a limit of 5ng/ml of active THC whereas other jurisdictions have selected a more conservative limit of 2ng/ml There is much debate concerning the validity of a per se limit for cannabis mainly due to lack of scientific consensus regarding what level of THC in a volume of blood constitutes driving impairment

38 Per se Laws Recent research evidence suggests that the accuracy of drug recognition expert (DRE) evaluations of cannabis impairment is less conclusive at a 5ng/ml per se limit This means that a per se limit may produce unintended negative consequences for the enforcement of cannabisimpaired driving laws without the widespread reliability of proven roadside testing devices As a consequence it is believed that any per se limit would be very vulnerable to legal challenge at this time

39 Zero-Tolerance Laws Some jurisdictions have opted to implement zero-tolerance laws which are often considered to be a variation of per se laws since the presence of even a small amount of any drug could result in a drug-impaired driving charge There are important challenges associated with zerotolerance laws including the fact that several drugs remain detectable in the body even days after use has ceased, and long after the impairing effects have ended Traffic Injury Research Foundation

40 Workplace Safety Bill C-45, the Cannabis Act outlines federal-provincial regime to produce and sell cannabis Bill C-46 allows for roadside saliva testing and adds harsher punishments for impaired driving Both Bills are silent on employment and OH&S related issues

41 Workplace Safety Legalization of the recreational use of cannabis will effectively make cannabis like alcohol in the workplace which means that it does not need to be accommodated

42 Workplace Safety The Task Force noted that impairment in the workplace can pose a danger to everyone in the workplace particularly in the case of safety-sensitive industries such as transportation where symptoms related to impairment reduced mobility, co-ordination, perception or awareness can increase risks of hazards, injuries and death At present there is no Canadian law permitting or regulating mandatory drug testing of employees Court decisions, including those by the Supreme Court suggest that random drug and alcohol testing is not permitted except in certain circumstances

43 Workplace Safety Cannabis impairment in the workplace is not a new issue, but questions were raised with the Task Force about whether the legalization of recreational cannabis might increase use and how that would affect workplace policies The Task Force heard about the use of cannabis in the workplace particularly among people working in safety-sensitive positions such as transportation Issues were raised about challenges associated with providing reasonable accommodation of employees who use cannabis for medical purposes or who may be dealing with dependence or other problematic use

44 Workplace Safety The TF noted that the concerns expressed on workplace safety reinforce the urgent need to reliably determine when individuals are impaired The TF also noted that should new evidence on cannabis impairment merit changes in workplace safety policies, the federal government should work closely with the provincial and territorial governments given their shared roles in the occupational health and safety system The TF noted that consideration will need to be given to the use of cannabis in workplaces. For example, a zero tolerance policy could be applied for those who operate heavy machinery or conveyances

45 Workplace Safety The TF made the following recommendations: Facilitate and monitor ongoing research on cannabis and impairment, considering implications for occupational health and safety policies Work with existing federal, provincial and territorial bodies to better understand potential occupational health and safety issues related to cannabis impairment Work with provinces, territories, employers and labour representatives to facilitate the development of workplace impairment policies

46 Workplace Safety The TF did not make any specific recommendations relating to the concerns raised about the challenges associated with the duty to accommodate

47 Medical Marijuana Canadian courts have recognized the right of patients to access cannabis for medical purposes Access to Cannabis for Medical Purposes Regulations (2016) Provides patients with options to produce their own supply of cannabis for medical purposes in accordance with the daily amount prescribed by their physician, to designate someone else to do so, or to purchase cannabis from a producer licensed by Health Canada

48 Medical Marijuana The Access to Cannabis for Medical Purposes Regulations do not use or define the term medical marijuana - refers only to access to marijuana for medical purposes The Task Force noted that while the formal clinical evidence base is incomplete, there is agreement that many individuals suffering from a variety of serious medical conditions benefit from both THC and CBD (the main ingredients of the marijuana plant) and that this make these patients use of cannabis different from that of nonmedical users even though the product (dried cannabis, cannabis oil, etc.) being used is the same

49 What is the Difference Between Medical and Recreational Marijuana? The marijuana plant is comprised of over 100 chemicals, known as cannabinoids, with each of these having different effects on the body Two main chemicals used in the medical application of marijuana are: Tetrahydrocannabinol, or THC. This is the psychoactive compound in marijuana i.e. the element that produces the high Cannabidiol or CBD. This substance does not produce any psychoactive effects

50 What is the Difference Between Medical and Recreational Marijuana? Medical marijuana has a higher CBD content, so when you are taking it, you do not feel the euphoria that is associated with its recreational compound Recreational marijuana is pot that is used without medical justification. Recreational marijuana has more THC content that the medicinal variety and this is what provides users with a high

51 What is Medical Marijuana Used For? Medical marijuana is often used to treat the following conditions: Appetite loss Alzheimer s disease Crohn s disease Cancer Eating disorders Mental health conditions Glaucoma Muscle spasms Multiple sclerosis Pain Nausea

52 Medical Marijuana medical marijuana is no different that any other prescription medication The duty to accommodate analysis will apply to the employee s medical condition and extend to the treatment prescribed Employers will not be required to simply accept workplace impairment where a person is occupying a safety sensitive position

53 Medical Marijuana If you do not have a medical marijuana policy you should get one A properly drafted policy which applies to the use of prescribed medication in the workplace or otherwise having a workplace impact will be critical get advice of legal counsel Implications for cost of coverage under employee benefit plans WCB may end up paying for an injured workers medical marijuana

54 Medical Marijuana Obligation on employer to not discriminate Focus on accommodation for the disability for which the medical marijuana is being used The same legal standard for accommodation applies: Prima Facie case of discrimination? The claimant has a characteristic that is protected from discrimination The claimant has experienced an adverse impact, and The protected characteristic was a factor in the adverse impact

55 Medical Marijuana Bona Fide Operation Requirement? Employer rule is rationally linked to job performance Employer has an honest and good faith reason for imposing the rule The rule is reasonably necessary to accomplish the legitimate work-related purpose Accommodation to the point of undue hardship

56 Medical Marijuana Some Key Cases French v Selkin Logging (2015) A human-rights complaint by a self-prescribing employee in a safety sensitive position who was using cannabis to manage cancer Obligation on the employee to disclose condition, obtain a medical prescription and ensure compliance with criminal drug laws. Failure of employee to do this means the use of medical marijuana unreasonable and an undue hardship on employer

57 Medical Marijuana French was never told by his doctors to smoke cannabis and he had no authorization to possess cannabis for medical reasons

58 Medical Marijuana Calgary (City) v CUPE Local 37 (2015) Grievance by an employee is a safety sensitive position who had disclosed the use of medical marijuana to their immediate supervisor Employee was removed from their safety sensitive position after senior management became aware Employer claimed dependency concerns Labour Relations Board found that dependency concerns were not supported by evidence of concern

59 Medical Marijuana Board found that investigation was conducted with the aim of removing the employee from their position Employee was reinstated to safety sensitive position Conditions were imposed dealing with requirement for an Independent Medical Examination and investigation of employer s dependency concerns

60 July 1, 2018 The Legislation

61 The Legislation The federal government has indicated that it will leave issues regarding regulating the wholesale distribution and retailing of cannabis up to the provinces and territories This could make the target date of July 1, 2018 an ambitious one for some jurisdictions

62 What are the Provinces Doing to prepare for legalization? BC is conducting a BC Cannabis Regulation Engagement Process with a November 1, 2017 deadline for feedback. The BC government s goals are protecting young people, making health and safety a priority, keeping criminals out of cannabis, and keeping our roads safe.

63 What are the Provinces Doing to prepare for legalization? The Alberta government conducted a public consultation process over the summer of 2017 to gather input to the Alberta Cannabis Framework A draft of the Framework was published on October 4, 2017 and an on-line survey for feedback closes on October 27, 2017

64 What are the Provinces Doing to prepare for legalization? The four policy priorities for cannabis legislation in Alberta are: Keeping cannabis out of the hands of children and youth Protecting safety on roads, in workplaces and in public spaces Protecting public health Limiting the illegal market for cannabis

65 What are the Provinces Doing to prepare for legalization? On the issue of impairment in the workplace the Alberta government notes that: Alberta already has rules and programs in place to address impairment on the job and keep workers safe, but before July 2018 the government will review OH&S regulations and work with employers, labour groups and workers to ensure the rules continue to address impairment issues. This may include developing additional regulations, education, or training programs.

66 What are the Provinces Doing to prepare for legalization? Saskatchewan conducted a public consultation process in late summer of 2017 on how to best legalize and regulate cannabis within Saskatchewan. The consultation process is now closed and a report will be presented to the Provincial Cabinet in Winter Manitoba has a survey on Controlling marijuana use currently open on the government web site There is no specific reference to workplace safety in the Manitoba survey

67 What are the Provinces Doing to prepare for legalization? On September 8, 2017 the Province of Ontario announced plans for a safe and sensible framework to manage federal legalization of cannabis and to govern the lawful use and retail of recreational cannabis as a carefully controlled substance within the province The use of recreational cannabis will be prohibited in public places, workplaces, or when inside a motor vehicle As a key part of the province s integrated awareness campaign, and to help keep Ontario workplaces safe, the province will be developing resources to guide employers, labour groups, and others as they manage workplace safety issues related to impairment at work through education and awareness initiatives

68 What are the Provinces Doing to prepare for legalization? Nova Scotia announced a public consultation process on October 6, 2017 including an on-line survey which closes on October 27, 2017 A select committee appointed by the Legislative Assembly of New Brunswick in April 2017 to conduct public consultations on cannabis legalization submitted its final report to the Legislature on September 1, 2017

69 What are the Provinces Doing to prepare for legalization? On the issue of impairment at work, the NB committee noted that case law authorizes employers to require employees to be unimpaired at work and noted that in practice there are many challenges, including prescription medication effects, addiction and determining when it is legal to test employees The NB committee made no specific recommendation on how to deal with those challenges On September 15, 2017 the NB government announced that it had secured the services of suppliers of cannabis for the recreational use market and was committed to working with the public, law enforcement and other partners and stakeholders to implement various public safety and health protections by July 2018.

70 What are the Provinces Doing to prepare for legalization? The government of Prince Edward Island conducted a public consultation process from August October 2017 The findings from the consultation are currently being reviewed and draft legislation will be presented to the legislature in the Winer/Spring of The legislation will focus on: Limiting the illegal market for cannabis Keeping cannabis out of the hands of children and youth Protecting public health Promoting safety on roads, in workplaces and in public spaces

71 What are the Provinces Doing to prepare for legalization? The government of Newfoundland and Labrador released the results of a public consultation process on August 24, 2017 There was very little discussion about workplace safety in the documents released by the government Announcements on public policy decisions and the introduction of legislation over the course of the next year to be ready for federal legislation when it comes into force

72 The Provinces Some provinces appear to be taking the position that the onus will be on employers to manage the risks associated with recreational cannabis use in the workplace and that no changes will be made to their current legislation dealing with impairment in the workplace

73 How is the federal government addressing issues related to workplace safety? When Canada s Minister of Justice appeared before the House of Commons Standing Committee on Justice and Human Rights in June of 2017 she was asked if she had given any consideration to how employers would be able to work with individuals who may be drug impaired. In response the Minister said: I guess I would say as a general comment, impairment in the workplace, is something that from all accounts, is seen as unacceptable. The regulations or the implications of an individual who is impaired in the workplace would be determined by the employer and the jurisdiction that activity would fall within

74 An Employer Perspective The legal obligation on employers is to ensure everything reasonably practicable is done to ensure the safety of their workplaces Protect the safety of the public with whom many employers share their workplace or with whom they come into contact Protect their ability to continue to conduct trade with the United States which will continue to treat cannabis as an illegal substance and which requires mandatory drug and alcohol drug testing for transportation providers (truck, bus, and rail)

75 An Employer Perspective Ensure our workplaces are not subject to human rights and other legal challenges arising from the legalization of cannabis Testing Duty to accommodate

76 Testing Employers in Alberta are likely to have greater latitude in terms of evidence they can rely upon to justify a policy of random drug or alcohol testing in the workplace following the decision of the Alberta Court of Appeal in Suncor Energy Inc. v Unifor Local 707A, 2017 ABCA 313 (Bennett Jones, October 19, 2017).

77 Testing The Alberta Court of Appeal decision in the Suncor case, and the earlier decisions in Suncor by the initial arbitration panel and the Alberta Court of Queen s Bench are the first decisions in Alberta to consider the issue of random drug testing since the Supreme Court of Canada decision in Communications, Energy and Paperworkers Local 30 Irving Pulp & Paper Ltd which imposed greater limits on an employer s right to conduct random alcohol testing

78 Testing In the Irving case the Supreme Court found that, absent extraordinary circumstances, an employer may not unilaterally impose random alcohol testing of employees, including safety-sensitive employees, even where the workplace in inherently dangerous In the Suncor case an arbitration panel, citing the Irving case, ruled in favour of Unifor holding that Suncor had not demonstrated a sufficient safety concern with respect to alcohol or drug misuse to warrant random drug and alcohol testing

79 Testing Suncor brought an application for a Judicial Review of the arbitration panel s decision which was subsequently granted, and the matter was sent back for review by a fresh arbitration panel Unifor appealed that decision and the Alberta Court of Appeal unanimously dismissed it noting that the majority of the arbitration panel had misapplied the Irving test

80 Testing Unifor has applied for leave to appeal the decision of the Alberta Court of Appeal to the Supreme Court of Canada

81 Testing Employers must be extremely cautious when implementing a drug and alcohol policy that includes random testing of employees. Such testing can only be justified in an inherently dangerous workplace, in relation to safety-sensitive employees, where a generalized problem with drug or alcohol abuse exists While the Suncor case does not decide what evidence exactly is required to prove that a general problem with substance abuse exists sufficient to justify random testing, it does stand for the proposition that employers in Alberta can rely upon a relatively broad spectrum of evidence to meet this test (Bennet Jones)

82 Testing The helpful elements of the Suncor case that were not addressed by the Alberta Court of Appeal can also be relied upon by employers, including finding that (pursuant to the decision of the Supreme Court in Irving) only a general problem with substance abuse need be demonstrated, rather than a significant problem, and the finding that only a reasonable likelihood of risk to health and safety due to substance abuse is required in order to justify random drug or alcohol testing (Bennet Jones)

83 Testing Presence does not equal impairment - a positive test result for cannabis does not equal impairment and does not necessarily mean that a person is cognitively impaired In the absence of a national cut-off level for THC or a zero-tolerance approach to the use of recreational cannabis in the workplace, employers are well advised to develop clear policies regarding the use of both medical and recreational cannabis in the workplace

84 Testing Employers who have zero-tolerance policies because of legitimate safety reasons can rest assured that creating this type of policy is within their management rights, but they must be aware of the fact that these policies need to be flexible where the duty to accommodate is triggered. (Christina Catenacci No Obligation to Let Employee Smoke Marijuana at Work as a Form of Accommodation

85 Fit for Work There are a number of factors that could affect an employee s fitness for work: Fatigue Alcohol Drugs Mental health Physical health Cultural issues Stress Training Competency

86 Fit for Work One way in which employers can address issues related to the use of medical and recreational cannabis in the work place is through a Fit for Work program

87 Fit for Work Fit for Work refers to employees ability to safely undertake the physical and psychological demands of their jobs. (Dyck, D. (2011). Occupational health and safety: Theory, strategy and industry practice) It is comprehensive approach that employers can take to co-ordinate health and safety efforts, policies and guidelines to ensure a safety and healthy workplace for everyone (Alberta Health Services Handout 1, Module 6, AHS 2014)

88 Fit for Work A fitness for work assessment is part of this approach and is used to determine if an employee can perform a specific job or task under their documented working conditions A comprehensive approach with four key elements: Clear policies and guidelines Workplace programs and services Employee support Shared responsibility

89 Fit for Work All staff should be clear about what the rules are and what is expected of them and employers should have procedures and guidelines in place with regard to treating employees according to labour, employment and occupational health and safety legislation Some examples of policies and guidelines that can support workplaces in consistently managing addiction, substance use, psychological health or physical health situations include:

90 Fit for Work Alcohol and drug policies Fit for work testing Drug testing programs Disability management programs Occupational health and safety programs Shift work guidelines Respectful workplace guidelines (e.g. the Canadian Safety Association psychological safety standard) (Alberta Health Services)

91 Fit for Work - Impairment Section 4.20 of the BC OHS Regulations dealing with physical and mental impairment and impairment by alcohol, drug or other substance provides a good example of wording that could be included in a fit for work policy or guideline: S.4.20 (1) A person must not enter or remain at any workplace while the person s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else

92 Fit for Work - Impairment (2) The employer must not knowingly permit a person to remain at any workplace while the person s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else (3) A person must not remain at a workplace if the person s behaviour is affected by alcohol, a drug or other substance so as to create an undue risk to workers, except where such a workplace has as one of its purposes the treatment or confinement of such persons

93 An Employer Perspective A workplace testing regulatory framework is necessary for employers: To ensure workplace safety is not jeopardized To minimize the risk of legalization of cannabis becoming a trade issue To ensure safety-sensitive employees comply with a prescribed national cut-off level for THC (if one is regulated) or a zero tolerance policy as contemplated by the TF

94 An Employer Perspective Governments and key stakeholders should work collaboratively to examine how labour and human rights legislation might be affected by issues surrounding cannabis and the workplace including the use of cannabis for medical purposes

95 Next Steps It is important that employers remain engaged with this issue at both the federal and provincial level (MPs and MLAs) Take every opportunity to impress on the elected the importance of this issue to employers and the need for the federal government and provincial governments to work together to harmonize their legislation and regulations

96 Next Steps We must continue to press governments to address our concerns with current restrictions on testing for alcohol and drugs and the onerous aspects of the duty to accommodate and to not avoid the discussion Governments must develop policies that recognize the occupational distinction between acute and persistent use of cannabis The provinces need to outline a framework for a drug testing regime

97 Next Steps No buck passing between the federal and provincial governments Worker and public safety is the concern - not the rights of people to use legalized recreational cannabis in the workplace

98 QUESTIONS