LEGALIZED AND MEDICAL MARIJUANA IN THE WORKPLACE

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1 LEGALIZED AND MEDICAL MARIJUANA IN THE WORKPLACE Saskatchewan Industrial & Mining Suppliers Association Inc. November 23, 2017 Kevin Wilson, Q.C. 1

2 WEED AT WORK Saskatchewan Industrial & Mining Suppliers Association Inc. November 23, 2017 Kevin Wilson, Q.C. 2

3 AGENDA 1. Overview of Marijuana Legalization 2. Issues Facing Employers in the U.S. 3. Impact on Safety Sensitive Positions 4. Impact on Non-Safety Sensitive Positions 5. Effective Employer Policies 6. Medical Marijuana 3

4 OVERVIEW OF MARIJUANA LEGALIZATION Draft legislation was introduced Spring 2017 Loosely based off Colorado Model Anyone over 21 can purchase and possess one ounce of marijuana products (buds, edibles, oils, etc.) Anyone can grow up to six marijuana plants in an enclosed space, so long as only three plants are flowering at once Cannot consume marijuana openly or publicly; only legal for private use 4

5 FINAL GOVERNMENT TASK FORCE RECOMMENDATIONS National minimum age of purchase of 18 Similar advertising restrictions as tobacco Labelling to include THC levels Public education on risks of use Fund education, research and enforcement Facilitate and monitor research on cannabis and impairment, considering implications for OHS policies 5

6 FINAL GOVERNMENT TASK FORCE RECOMMENDATIONS No co-location of alcohol and cannabis sales Limits on density and location of storefronts, including appropriate distances from schools, public parks, community centres, etc. Personal cultivation of cannabis to be allowed to a maximum of 4 plants/100 cm high with reasonable security measures to prevent theft/youth access Public use restrictions similar to tobacco 6

7 FINAL GOVERNMENT TASK FORCE RECOMMENDATIONS Invest in research to better link THC levels with impairment Determine whether to establish a per se limit as a comprehensive approach to cannabis-impaired driving Support to the development of an appropriate roadside drug screening device Invest in DRE training and staffing 7

8 DRAFT LEGISLATION Largely adopted task force recommendations Went with per se limits for cannabis-impaired driving Tentative plan is to legalize in July of

9 DRAFT LEGISLATION Bill C-45, an Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts and Bill C-46, an Act to amend the Criminal Code will reform the legal regime governing the use of recreational cannabis. Highlights include: Individuals can possess up to 30 grams of cannabis on hand at a time; Individuals can grow up to four plants in their own home; Harsh penalties for illegally supplying pot to minors (up to 14 years in jail); Roadside saliva tests if impairment is suspected; can lead to a demand for mandatory evaluation by a drug impairment expert or a blood sample; and Age of use can align with provincial drinking ages. 9

10 ROADSIDE TESTING IN CANADA Proposed per se limits: 1) 2-5 ng/ml of THC: Having at least 2 but less than 5 ng of THC per ml within two hours of driving would be a separate summary conviction criminal offence, punishable only be a fine. This lower level offence is a precautionary approach that takes into account the best available scientific evidence related to cannabis. Punishable by a maximum fine of up to $1,

11 ROADSIDE TESTING IN CANADA Proposed per se limits: 2) 5 ng or more of THC: Having 5ng/mL of THC within two hours of driving would be a hybrid offence. 3) Combined THC and Alcohol: Having a blood alcohol concentration of 50 mg per 100mL of blood, combined with a THC level greater than 2.5ng/mL within two hours of driving would be a hybrid offence. Both hybrid offences would be punishable by mandatory penalties of $1,000 for a first offence, and escalating penalties for repeat offenders. 11

12 LIKELY OUTCOMES IF DRAFT LEGISLATION ADOPTED? Legal marijuana will be as readily available to adults as alcohol and cigarettes Marijuana will be as readily available to youth as alcohol and cigarettes, despite efforts to prevent that Usage among adults and youth will rise from existing levels with the stigma of criminality removed and ease of access One recent poll suggests 900,000 Canadians will likely start using once legalized. The science on standards of impairment and testing for impairment will remain lacking for foreseeable future. 12

13 13

14 ISSUES FACING U.S. EMPLOYERS 14

15 ISSUES FACING U.S. EMPLOYERS 15

16 ISSUES FACING U.S. EMPLOYERS 32% increase in marijuana related traffic deaths Percentage of U.S. adults using marijuana doubled in 3 years to 13% In Colorado, 1 in 4 adults reported past month use 1 in 8 reported daily or near daily use Lack of regulation of edibles increased problems Pot-related poison control calls increased 5x 16

17 ISSUES FACING U.S. EMPLOYERS Measuring Impairment Unlike alcohol, there is no definitive test that can determine whether someone is presently impaired by marijuana Current testing only measures the level of THC or the metabolites in the body. THC affects everyone differently, so difficult to predict level of impairment on this basis Zero tolerance policies are popular for these reasons 17

18 ISSUES FACING U.S. EMPLOYERS Implementing and Enforcing Zero-Tolerance Policies Best way to ensure employees are not impaired at work Colorado Supreme Court ruled the state s lawful off-duty conduct statute does not protect employees from termination for marijuana use in violation of an employer s zero tolerance drug policy Beware: zero tolerance drug policy may deter employees from applying to or remaining with a certain employer Seen as employer exerting control over employee s personal time 18

19 ISSUES FACING U.S. EMPLOYERS Educating Employees about Rights and Obligations Inform employees that marijuana cannot be used in the same manner as tobacco; marijuana is treated like alcohol Cannot use marijuana before or during work Cannot bring marijuana to work 19

20 IS ILLEGAL MARIJUANA A SAFETY ISSUE TODAY IN CANADA? For adults? For youth? 20

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23 MANITOBA PUBLIC INSURANCE ROADSIDE SURVEY Negligible number of drivers tested positive for alcohol Suggests drivers understand should not drink and drive However, prevalence of positive drug tests indicates both widespread use and lack of awareness regarding drugs and impairment In 2013, 40% of fatally injured drivers in Manitoba tested positive for drugs 23

24 TORONTO TRANSIT COMMISSION Controversial random resting program for safety sensitive positions Not yet determined legal But Court refused to issue injunction to stop 8 workers tested on first day 24

25 MARIJUANA AND OH&S Under OHS legislation employers have the duty to ensure, as far as reasonably practicable, the health, safety and welfare at work of all the employers workers. Employees do not have a right to be impaired in the workplace where their impairment may endanger their own safety or the safety of co-workers. 25

26 IMPACT ON SAFETY SENSITIVE POSITIONS Implementing Zero Tolerance Policy Most effective way to prevent impairment in the workplace Often use U.S. Department of Transportation THC cut off levels Policy could cover all employees, or only safety sensitive employees Beware: can only drug test safety sensitive positions Unique considerations apply to medical marijuana license holders 26

27 IMPACT ON SAFETY SENSITIVE POSITIONS Drug and Alcohol Testing Policies Generally limited to safety sensitive positions, and only in certain situations (after an incident, as a pre-condition of employment, etc.) Case law suggests employer must demonstrate, through concrete data, a workplace problem with drug and alcohol use to justify random testing Random testing not allowed as proactive measure to avoid accidents or injuries in the workplace 27

28 IMPACT ON SAFETY SENSITIVE POSITIONS Random Drug & Alcohol Testing Irving Pulp (2013) Random alcohol testing by an employer, without proper justification, is not permitted Employer must demonstrate evidence of enhanced safety risks to justify random alcohol testing 28

29 IMPACT ON SAFETY SENSITIVE POSITIONS Dealing with Regular Marijuana Users Unlike prescription drugs, no controls on amount of THC, frequency, or dosage. Different effects on casual vs. frequent users. Evidence suggests regular marijuana users are at a constant low level of impairment, and thus should not be employed in safety sensitive positions Health Canada says impairment can last for over 24 hours after use But, one Arbitration Board held in 2015 that an employee can work in a safety sensitive position while using marijuana on a regular basis 29

30 PROACTIVE STEPS FOR EMPLOYERS Implementing Drug and Alcohol Policies At minimum, policy should prohibit marijuana use before and during work and prohibit possession in the workplace Employers should create new policy or revise current policy to include recreational marijuana as a prohibited drug Policy should detail disciplinary action available to employer where policy is violated Determine which positions are safety sensitive 30

31 EDUCATION & TRAINING Educate employees Provide updated policies well in advance and have employees sign acknowledgments Educate employees on cannabis and how it will affect performance Advise employees in safety-sensitive procedures of the consequences for being impaired while on the job Address acceptable use of prescription drugs (including medical marijuana) and non-prescription, impairment-inducing substances (including marijuana) 31

32 PROACTIVE STEPS FOR EMPLOYERS Educate supervisors/management Provide training on spotting symptoms/signs of use, and administering impairment testing Determine specific indicators for job-specific impairment, for example: Hand-eye coordination? Difficulty maneuvering equipment? Testing for mental comprehension? 32

33 MEDICAL MARIJUANA IN THE WORKPLACE Are there more medical marijuana shops in Vancouver than Tim Hortons locations? Controversy exists respecting whether medical marijuana does effectively treat medical issues (limited support from physicians groups). Medical marijuana has not undergone the rigorous clinical trial testing and studies that other drugs are required to undertake to be licensed in Canada. There is limited evidence respecting risks and side effects (although most drugs have risks and side effects). 33

34 MEDICAL MARIJUANA IN THE WORKPLACE According to Health Canada statistics, medical use of marijuana has grown from as little as 100 authorized persons in 2001 to nearly 130,000 as of December Medical marijuana in the workplace has created new questions for all employers, not just employers with employees in safety sensitive positions. How did we get here? 34

35 MEDICAL MARIJUANA LEGAL REGIME R v. Parker (2000) (Ont. C.A.) held that federal government was obligated under the Charter to provide reasonable access to a legal source of marijuana for medical purposes. In 2001 Marijuana Medical Access Regulations (MMAR) were introduced. In June 2013, the MMAR were repealed and replaced with Marijuana for Medical Purposes Regulations (MMPR) MMPR aimed to treat marijuana much like other narcotics used for medical purposes and provide access to quality-controlled marijuana for medical purposes, produced under secure and sanitary conditions. 35

36 MEDICAL MARIJUANA LEGAL REGIME The Smith Decision (2015)(SCC) It is unconstitutional to forbid the possession of edible and topical cannabis for medical purposes under the CDSA. The relevant sections of the CDSA prohibiting possession of alternate forms of marijuana products are of no force and effect to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes. As a result, authorized individuals may possess medical marijuana in a variety of forms such as cookies, gel capsules, oils, patches and butters. 36

37 MEDICAL MARIJUANA LEGAL REGIME The Allard Decision Federal Court of Canada issued an interim injunction with respect to the MMPR and ruled that patients currently licensed to grow their own marijuana under the old MMAR would be permitted to produce the drug until their constitutional challenge of the new system under the MMMPR could be heard by the Courts. The government unsuccessfully appealed that decision in December

38 MEDICAL MARIJUANA LEGAL REGIME A final decision was issued in Allard on February 24, Federal Court ruled that Canadians have a constitutional right under s.7 of the Charter to grow their own marijuana for medical purposes. The Court declared that provisions of the MMPR are unconstitutional and invalid. The Court gave the government 6 months to revise the legislation. The Liberal Government announced it will not appeal and will continue with its mandate to legalize marijuana. On August 24, 2016, in response to Allard v Canada and the Supreme Court Ruling in R v Smith regarding exemptions, Health Canada implemented the Access to Cannabis for Medical Purposes Regulations (ACMPR). 38

39 MEDICAL MARIJUANA IN THE WORKPLACE Accommodating Medical Marijuana in the Workplace Because medical marijuana is used to treat a variety of illnesses that may meet the definition of a disability under human rights legislation, the use of medical marijuana may engage the issue of accommodation in the workplace. 39

40 THE DUTY TO ACCOMMODATE APPLIED Medical marijuana engages the same principles of accommodation as any other doctor prescribed drug. Human rights legislation mandates that an individual has the right to equal treatment with respect to their employment without discrimination on the grounds of "disability as it is a prohibited ground. Employees may be prescribed medical marijuana to cope with a number of conditions such as epilepsy, nausea from cancer chemotherapy, arthritis, chronic pain, or sleeping disorders. 40

41 DUTY TO ACCOMMODATE ISSUES Dealing with Regular Marijuana Users Same concerns as with legal marijuana use. Unlike prescription drugs, no controls on amount of THC, frequency, or dosage. Evidence suggests regular marijuana users are at a constant low level of impairment. Health Canada says impairment can last for over 24 hours after use. 41

42 MEDICAL MARIJUANA IN THE WORKPLACE The use of medically authorized marijuana by employees creates new questions for employers. Unlike alcohol, serious issues over ability to test for present impairment. Lack of consensus on lingering impairing effects. Duty to accommodate does not mean employee gets to continue to work in a safety sensitive position. What are the workplace rules? What is safe? Little judicial consideration on medical marijuana in the workplace. 42

43 Q&A 43

44 Kevin Wilson, Q.C. T: (306) F: (306) MLT Aikins, the MLT Aikins Designs and Western Canada s Law Firm are trademarks of MLT Aikins LLP. Copyright 2017 MLT Aikins LLP. All rights reserved. 44

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