Special Presentation for HRAI. Peter Straszynski. Partner, Torkin Manes LLP. August 17, 2017, Quebec City TORKIN MANES LLP

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1 Marijuana and the Canadian Workplace Special Presentation for HRAI Peter Straszynski Partner, Torkin Manes LLP August 17, 2017, Quebec City TORKIN MANES LLP

2 Marijuana and the Canadian Workplace Agenda: 1. What does it mean to legalize? 2. What is the significance of legal and medical marijuana to employers? 3. What should employers do? 2

3 Marijuana and the Canadian Workplace Marijuana/Cannabis: Illegal under the Controlled Drugs and Substances Act Lawful for medical use Bill C-45 (The Cannabis Act) ) will legalize marijuana Target Date is July 1,

4 What does it mean to legalize? Bill 148 (Cannabis Act): Amends Criminal Code and the Controlled Drugs and Substances Act de-criminalizes criminalizes marijuana full regulatory framework licit v. illicit cannabis 4

5 What will be an offence? Illegal for adults (over 18 years) to: possess in public or distribute more than 30 dried grams; possess or distribute cannabis known to be illicit; distribute cannabis to persons younger than 18 or to an organization 5

6 What will be an offence? (cont d) Unlawful for all individuals to: Possess/distribute a budding or flowering cannabis plant, or more than 4 non-budding or flowering cannabis plants distribute to an organization 6

7 What are the potential penalties? Penalties: fines Incarceration up to 14 years in prison director, officer, agent liability employers vicariously liable due diligence not a defence 7

8 What are the effects on performance? Short term performance effects: problems with memory and learning distorted perception difficulty in thinking and problemsolving loss of coordination 8

9 Effects (cont d) Heavy users may have increased difficulty: sustaining attention shifting attention to meet the demands of changes in the environment registering, processing and using information. 9

10 How long do the effects last? Duration of effects: normally felt within minutes peak in minutes high can last approximately 2 hours return to baseline within 3-5 hours 10

11 Do my employees get to work high? Non-medical marijuana is like alcohol: Prohibition under Drug & Alcohol Policy No use during work hours No attendance at work while impaired Violation can be made the subject of progressive discipline, up to dismissal for cause 11

12 What if an employee is addicted? Physical or psychological dependency is a disability : duty to accommodate failure to identify, address and accommodate the employee s substance addiction as a disability can result in reversal of discipline or reinstatement 12

13 Is addiction a full shield? Stewart v. Elk Valley Coal Corp SCC upheld termination for cause loader driver crashed high on cocaine, to which he was addicted no free accident policy requiring: a) disclosure or b) termination ti if failure and accident 13

14 Stewart v. Elk Valley Coal Corp. Take Aways: SCC Endorsement of No Free Accident policy Breach of policy possible where addiction Rejection of denial excuse/defence 14

15 What about medical marijuana? Cannabis regularly prescribed to aid: attention deficit disorder, arthritis, back and neck problems, chronic pain, colitis, Chron s disease, eating disorders, head injuries, HIV, fibromyalgia, migraines and sleep disorders 15

16 Prescription trends in Canada Prescriptions, according to Health Canada: 12,409 by September ,537 by September ,460 by September ,000 by December, % increase in 3 years 16

17 What does accommodation involve? Like other medical accommodation, requiring, at least: proof of prescription medical indication for use at work information regarding g frequency, volume and method of ingestion 17

18 Accommodation (cont d) Safety assessment requires: medical assessment of resulting impairment restrictions on safe performance consideration of alternative treatments 18

19 How can we assess impairment? At least 7 methods of ingestion: less detectible by simple observation Unlike alcohol: Present in system longer No correlation to impairment No reliable medical test 19

20 Are we allowed to drug test? No pre-employment or random testing: reasonable cause or post-incident testing, where safety-sensitive positions are involved remains to be seen whether random testing will become permissible for certain safety-sensitive sensitive positions 20

21 What do we need to do? Employers should: update drug & alcohol policies include a duty to disclose (and not to conceal) modify human rights and accommodation policies deal with marijuana dependency 21

22 What do we need to do? (cont d) introduce protocols for accommodation of medical marijuana establish framework for testing for impairment, including triggering g circumstances and testing methods train management, supervisory, and all other staff on the application of all policies 22

23 What do we need to do? (cont d) Consult with professionals to: establish a checklist of non-medical verbal or physical inquiries to assess impairment Adopt workable definition of impairment Create standard medical marijuana forms for treating physicians 23

24 What if we have no existing policy? 10 components of your policy: 1. Purpose 2. Scope 3. Employee Obligations 4. No Exception for Legal or Medical Marijuana 24

25 What if we have no existing policy? 5. Medical Marijuana 6. Mechanism for Self-Reporting 7. Testing for Safety Sensitive Jobs 8. Investigation 9. Penalties for Violation 10.Accommodation 25

26 Peter Straszynski Partner, Employment, Labour, Human Rights Law Phone Torkin Manes LLP 151 Yonge Street, Suite 1500 Toronto, ON M5C 2W7

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