Marijuana and Workplace Safety: New Hazards on a Hazy Horizon? Loretta Bouwmeester, Partner Wilson Chan, Associate

Transcription

1 Marijuana and Workplace Safety: New Hazards on a Hazy Horizon? Loretta Bouwmeester, Partner Wilson Chan, Associate March 8, 2018

2 Session Overview Social standards changing... Cannabis The Science and Medicine What it is What the medical profession tells us about it Cannabis Workplace Safety Consequences Impairment as a Hazard Workplace Drug Testing 2

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4 Sun Life Adds Medical Marijuana Option to Employee Benefits Plans Sun Life cited medical evidence when adding medical marijuana as an Extended Health Care benefit to a yearly maximum between $1,500 - $6,000 Employees must meet Sun Life s clinical criteria to be eligible, and pass through an approval process before claims are adjudicated (decided on) Option is currently available to patients with: Cancer; Multiple sclerosis; Rheumatoid arthritis; and AIDS Sun Life will conduct periodic reviews and amend the benefits plan accordingly Illustrates a trend toward coverage, even though expensive for the employer. Employers will have to make this decision in the near future 4

5 Workplace Responsibilities Employers, Prime Contractors and Workers all have a shared responsibility to: Protect the health and safety of workers and co-workers Protect the public and the environment Establish and comply with workplace policies Respect and comply with human rights and privacy legislation o For workers, this includes cooperating in the accommodation process o Prime Contractor obligations may differ 5

6 Current Legal Landscape Medical Use: Permitted now Can be legally prescribed by a doctor or nurse practitioner Over the counter availability is coming Access to Cannabis for Medical Purposes Regulations Recreational Use: Prohibited now at least until Summer 2018 (no longer July 1 st ) 6

7 A MEDICAL PERSPECTIVE ON CANNABIS IN THE WORKPLACE DriverCheck slides compliments of Dr. Melissa Snider-Adler DriverCheck Inc.

8 What is cannabis? Anything derived from cannabis plant Delta-9-tetrahydrocannabinol = THC Cannabidiol = CBD Influences Endocannabinoid system o o o o Appetite Mood Memory Pain sensation

9 Cannabidiol - CBD Not itself psychoactive Available in an OIL form Presence of THC in ALL AVAILABLE Will still test positive Low THC so less impairing but cannot state NO IMPAIRMENT OFTEN PURCHASED FROM DISPENSARY OR ILLEGALLY ON LINE no quality control

10 Illicit use/street use Dispensaries = illegal ACMPR medical marijuana Recreational cannabis Legal in? JULY 2018 WAYS TO OBTAIN CANNABIS IN CANADA

11 DABS shatter honeycomb crumble

12 EDIBLES not yet

13 Marijuana Out in Plain Sight? Edibles R v. Smith, 2015 SCC 34

14 The numbers speak volumes Medical Cannabis Users

15 What do physicians say about cannabis for medical purpose?

16 College of Family Physicians of Canada Conflicting and, in some cases, absent evidence on the effectiveness and safety of marijuana Smoke is a hazardous delivery system Active ingredient can be prescribed as oral capsule or inhaled spray Weak evidence supporting analgesic effectiveness

17 College of Family Physicians of Canada 2014 Guidance Paper No evidence to support use for pain Use for neuropathic pain in specific instances Not appropriate for anxiety or insomnia Physician responsible for managing care

18 TOOLS FOR PRACTICE Alberta College of Family Physicians, November 2017 Compared to other medications, cannabinoids no better with more adverse events No difference in Quality of Life For most conditions (example anxiety), cannabinoid evidence is sparse (at best), low quality and non-convincing

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21 Is an authorization the same as a prescription?

22 Typical Prescription

23 Patient's Given Name and Surname: Patient's Date of Birth (DD/MM/YYYY): Daily quantity of dried marihuana to be used by the patient: grams/day The period of use is day(s) or week(s) or month(s). Note: The period of use cannot exceed one year Health care practitioner's given name and surname: Profession: Health care practitioner's business address:

24 2017 marijuana stats 23% Full time/part-time workers use cannabis 39% Driven under the influence of cannabis (within 2 hrs) 39% Passenger with driver under influence of cannabis (within 2 hrs) 21.5% Used cannabis to get high before or at work (last year) 7.7% Use cannabis to get high before or at work weekly or daily Canadian Cannabis Survey respondents telephone and then survey through mobile phones

25 How does marijuana impair? Euphoria and relaxation Time distortion Difficulty with divided attention Cognitive impairments and memory

26 Marijuana and Pilot Performance Experienced pilots trained on a flight simulator Given one joint of marijuana (3.65%) Tested before, and 0.25, 4,8,24, 48 hours after Significant impairment seen up to 24 hours 7/9 showed impairment at 24 hours ONLY ONE HAD AWARENESS OF THE DRUG S EFFECTS Leirer, V.O., Yesavage, JA., Morrow, DG., Marijuana Carry-Over Effects on Aircraft Pilot Performance. Aviat Space Enciron Med Mar;62(3):221-7

27 Ontario Driving and Cannabis 475,000 licensed Commercial Drivers in Ontario Over 70% due to cannabis 2014 Ontario Roadside Alcohol and Drug Testing (oral fluid) 10.2% positive for any drug 36% positive for drugs 70% 30% all other drugs Cannabis 2014 Collision Data FATAL ACCIDENTS

28 3 TYPES OF IMPAIRMENT Effects After-effects/residual Withdrawals

29 ACUTE Depends on the drug high numb Cognitive changes Attention Reaction time

30 RESIDUAL Hang-over Crash from cocaine/methamphetamine fatigue Comprehension issues Unclear mind Attention Reaction time

31 WITHDRAWALS Most severe with opioids Seen with cannabis, cocaine, methamphetamine Cognitive changes Attention Reaction time Concentration

32 Colorado Cannabis Canada Colorado Department of Public Safety, March 2016 Marijuana Legalization in Colorado: Early Findings

33 What we can learn from Colorado Cardholder growth 342,976 new patients have applied since the Registry began Increase in last 30 day use (SAMHSA) pre and post commercialization year olds: 48% increase >26 years old: over 230% increase

34 Positive testing and MVA fatalities Increase of 230% 2006 to 2012 From 2013 to 2014 continue increase of 70% testing positive for delta-9-thc in blood

35 Safety Summary Doubles car crash risk Cannabis use prior to driving increases the risk of being involved in a motor vehicle accident - substantial evidence of a statistical association The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research Washington (DC): National Academies Press (US); 2017 Jan 12

36 Legalization then what?

37 Roadside Testing Commercial vehicles = ZERO TOLERANCE No recreational use in the workplace No recreational use in public places Roadside testing includes oral fluid and then blood/serum levels No decisions are final yet

38 Drug testing today

39 POCT and LAB TESTS POCT immediate result False positives urine highly sensitive, lower specificity Qualitative vs. quantitative Reasons for false negatives Around the cut-off Recent use

40 THC in urine vs. oral fluid THC metabolite positive for days to weeks in urine THC parent positive for hours in oral fluid NEITHER CONFIRM IMPAIRMENT ONLY TIMING OF USE Urine is still gold standard for risk-based programs (US DOT) Oral fluid growing in Canada due to up coming legalization

41 Summary 1. Medical evidence is still developing for use of cannabis 2. Many physicians who authorize cannabis do not consider workplace safety issues 3. Impairment is a real concern for those in safety sensitive positions 4. Potential for addiction is a concern, particularly for those under There are no tests of impairment, only of recent use and LIKELY impairment 6. Just because something is authorized or prescribed does not mean it is safe to use in the workplace

42 Cannabis and Workplace Safety 42

43 Why does all of this matter? Workers lives matter Public Safety matters The Environment matters Economic/Reputational risks Regulatory Licences to Operate 43

44 Impacts of Cannabis on Work Productivity University College London conducted a study in 2016 demonstrating short-term effects of marijuana on human motivation Participants who had used marijuana recently were more likely to choose a low-effort test vs a high-effort test, even where the financial reward for the high-effort test was greater ($0.50 vs $2.00) Control group participants chose the high-effort option 50% of the time; where those who had used marijuana recently chose it only 42% of the time Participants who were dependent on marijuana, but had not used or consumed alcohol within the last 12 hours showed no differences in work motivation compared to the control group 44

45 Regulatory Non-Compliance Consequences Orders - that may require operations to be carried out a certain way, stop work orders, or suspension of operations at more than one worksite Administrative Penalties ex. in BC have a max penalty of $646, (2018) and $10,000 per day per offence in AB Prosecution - under OH&S legislation or the Criminal Code of Canada which may lead to unlimited fines or jail time for corporate representatives Negative publicity - related to large penalties/fines, orders, prosecutions Denial of future regulatory approvals or imposition of additional conditions - can interfere with operations 45

46 Jail Time a Reality R. v. Sukhwinder Singh Nagra, November 1,

47 Sentencing Trends Penalty Amounts Administrative and Court Ordered Jail Time Frequency Provincial OHS laws Criminal Code 47

48 Why Does Safety Matter? R. v. Metron Construction Corp ONCA

49 Cases Where Drug Use a Factor R v Metron Construction Corp ONCA Christmas Eve fatalities in Toronto while contractor restoring concrete on a high rise building 6 workers, 2 lifelines swing stage collapses According to toxicology reports, three of the four deceased workers, including the site supervisor, had marijuana in their system at a level consistent with having recently ingested the drug at the time of the incident See also: R. v. Kazenelson, 2015 ONSC yr jail sentence 49

50 Cases Where Drug Use a Factor R v Canadian National Railway, CarswellMan 118, [2003] 8 WWR 503 Foreman of railway switch crew was killed at work when he fell off a rail car and was run over by its wheels Consumed cannabis within a few hours of shift starting (blood tests suggest possible impairment) It is not illogical to infer based on the evidence, that some of Kowalyk's inexplicable actions in terms of disregarding safety procedures prior to the accident might be explained by his possible impairment. Employer charged, went to trial and was found not guilty of all counts as it had a due diligence defence 50

51 Cases Where Drug Use a Factor R v Reliable Wood Shavings Inc., 2013 ONCJ 518 An operator of a blower truck was working alone when he began to transfer wood shavings from the silo into his truck, he was found inside the truck box, buried under saw dust and later died at hospital (not clear how injury happened) Marijuana was found in his blood but no determination if the operator was suffering any type of impairment Employer charged and convicted on all counts but one Court found that employer can still be found guilty of OHS offence even if the precise mechanism of injury or death was unclear 51

52 Cases Where Drug Use a Factor R v Westcon Precast Inc., 2007 ABPC 143 Employee responsible for operating crane and covering holes on the bottom surface of very heavy plugs with masking tape before lowering plugs into mould, did not ensure plug was properly attached to crane before going underneath plug to tape holes Plug fell on employee and crushed him resulting in fatality Autopsy showed use of cannabis during final hours of life Employer pleaded guilty to failing to ensure health and safety of employee and was sentenced to $5,000 fine, $750 VFS, and $195,000 payment to Manufacturers Health and Safety Association 52

53 Safety-Sensitive What does it mean? Evolving definition Depends on position (involvement), context, industry, particular workplace, policy Position where employee has responsibility for his/her own safety or the safety of others A safety sensitive position is one in which incapacity due to drug or alcohol impairment could result in direct and significant risk of injury to the employee, others or the environment 53

54 Due Diligence = all reasonable care to prevent the violation Breach of OHS (and regulatory) obligations generally strict liability offences (vs. criminal liability or absolute liability) Deterrence rather than punishment model Focus is on prevention of harm Reasonably Practicable - Due diligence is an important legal defense for a charge under occupational health and safety legislation Reverse Onus once act proven, obligation (and opportunity) for employer to demonstrate that employer took all reasonable precautions, under the particular circumstances, to prevent injury or accident 54

55 What is the Test? Due diligence is demonstrated by your actions before an incident occurs, not after the fact Reasonable Person Test - Would a reasonable peer in the industry have implemented the same measures or would they have taken greater precautions in a similar situation? Not required to be perfect or take every single precaution (although recommended) The Courts will look to what is suitable and rational in the particular circumstances 55

56 Decision to Prosecute Due Diligence Action Source: Work Safe Alberta 56

57 Factors in Establishing Due Diligence Defense Foreseeability - Could a reasonable person have foreseen that something could go wrong? Severity How severe is potential harm to worker(s)? Preventability - Was there an opportunity to prevent injury or incident? Control Did the employer have any control over the circumstances that resulted in the incident? 57

58 Best Practices Know the (OHS) law (including Codes and Regulations) that apply to your industry/work and comply Be proactive PLAN DO CHECK ACT - REPEAT Be aware of Industry Best Practices and Standards Implement a safety management system to identify, evaluate, and control hazards Create checklists and written records to verify system Implement/update effective written workplace policies, practices and procedures 58

59 Best Practices Conduct regular audits of safety practices and policies Provide appropriate training and education to employees and supervisors Not only on task but of safety requirements and expectations (i.e. whether the employee is fit for work) Provide tools and support to report concerns safely and confidentially Regularly retrain and provide refreshers on training Be transparent and communicate safety hazards and requirements to employees Have regular safety meetings Engage Joint Health and Safety Committees/Safety Reps 59

60 Best Practices Monitor for compliance and adhere to progressive discipline for breaches of safety (Enforcement) This includes accident/incident investigation and reporting systems Document, Document, Document Forms basis of defense - without records of steps taken, very difficult to prove that they happened Develop a safety first culture Need to have the buy-in of all stakeholders and commitment for effective implementation and ongoing operationalization 60

61 Human Rights and Privacy vs. Workplace Safety? 61

62 Human Rights Issues: Marijuana at Work Human rights law obligations with respect to employees who are recreational users v. those suffering from addiction How to accommodate employees with either an addiction or medical authorization to use cannabis Last Chance Agreements for those returning to work following rehabilitation/treatment Good news (finally!) from the Supreme Court of Canada and how to incorporate into your workplace Making sense of the 1,200 human rights cases on marijuana in last 5 years 62

63 Disability Basics Most employers understand: they cannot discriminate against employees who have a physical or mental disability and there is an obligation to accommodate employees with a disability to the point of undue hardship Drug addiction has long been considered a disability, 18 years ago in Entrop v. Imperial Oil, 2000 CanLII the Ontario Court of Appeal accepted the Board of Inquiry s finding that drug abuse is a handicap and is an "illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning." Yes 63

64 Somethin to Talk About Setting: In the near future Recreational Marijuana has been legalized Situation: Tom, a commercial bus driver that transports workers to construction sites, arrives at work, smelling like marijuana. HR gets wind of this and when asked if he had been smoking marijuana prior to his shift, he tells them that he has doctor s orders to self medicate for back-pain. He has no prescription/authorization for marijuana or medical recommendations for its use 64

65 Recreational v. User with Addiction Recreational User Uses occasionally for fun or relaxation Is not protected under human rights law No medical authorization Presently illegal, won t be soon No duty for employer to accommodate Treat like employee drinking alcohol recreationally at work User with Addiction Addictive behaviour, a preoccupation with marijuana, compulsion to use, relapses May or may not have a medical authorization Is protected under human rights law Employer must provide reasonable accommodation to point of undue hardship Legalization will not change these 2 categories 65

66 Quiz: Recreational User or Addicted User? 66

67 Recreational User v. Addicted User The challenge for employers is differentiating the recreational user from the addicted user Recreational users sometimes present as having an addiction if they are about to be disciplined or terminated from employment due to possession or impairment at work Addicted users sometimes deny their addiction and maintain they are only recreational users It is only through reviewing all the circumstances and medical evidence can you determine if an employee has a disability or is just a recreational user. Employers have a duty to inquire. 67

68 Medical Marijuana v. User with Addiction Medical Authorization (No Addiction) Uses for treatment of underlying medical condition which may or may not be a disability If a disability, duty to accommodate and protected under human rights Treat like employee who is prescribed painkillers User with Addiction Addictive behaviour, a preoccupation with marijuana, compulsion to use, relapses May or may not have a medical authorization Is protected under human rights law Employer must provide reasonable accommodation to point of undue hardship Legalization will not change these categories 68

69 Somethin to Talk About Setting: Current Situation: Elmer, a crane operator who was recently diagnosed with cancer, voluntarily discloses to his immediate supervisor that he has a prescription for marijuana use and plans on using it to relax. How should the employer respond? 69

70 Accommodating Employee with Addiction Hydro Quebec SCC 2008 test for prima facie discrimination 1.Is there a disability? 2.Is the employee treated differently b/c of disability? 3.Is the disability a factor (not the sole factor) in the adverse treatment? It is not whether it is impossible for the employer to accommodate the employee. No duty to change working conditions in a fundamental way but can the employer change the duties to enable employee to do work without undue hardship? 70

71 Accommodation of Employees - Addiction Ensure all employees aware of policies Toleration of some absences, performance issues, consider how the addiction is impacting conduct and performance, caution before treating as disciplinary Referral to Employee Assistance Programs Providing a list of resources and addiction treatment options Access to a physician Most frequent: Time off (unpaid) to attend rehabilitation 71

72 Return to Work Following Rehabilitation Information required to assess fitness for duty and details regarding treatment Possible administrative/medical leave until details provided Clear expectations on return to work (including unannounced or random testing) Watch for signs of impairment 72

73 Last Chance Agreements Be cautious with use of Last Chance Agreements, unless carefully drafted they will not be upheld Adjudicators will often give additional chances due to nature of addiction and frequency of relapse Involve union/legal advice Conditions of return to work/last chance agreements may include: Fit for duty clearance Completion of treatment program/rehab Information regarding treatment and compliance Random, periodic testing for a defined period May be terminated for relapse but must be assessed on caseby-case basis 73

74 Medical Marijuana If employee indicates they are using medical marijuana on doctor s orders: Ask them to provide the medical authorization Review it carefully If vague, employer can request further information from authorizing physician including dosage; frequency; manner of delivery (are there options to smoking); whether it will affect their ability to operate machinery, etc. 74

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77 Stewart v. Elk Valley Coal, 2017 SCC 30 Company policy required employees to disclose addiction issues and treatment offered without discipline, but if no disclosure and incident occurred and positive test resulted, employment would be terminated Employee had an accident operating loader; tested positive for cocaine and was terminated from employment UMW filed human rights complaint on behalf of employee Tribunal: no discrimination established, terminated for policy violation and disability was not a factor AB Court of Queen s Bench and Alberta Court of Appeal agreed with Tribunal and upheld termination 77

78 Stewart v. Elk Valley Coal, 2017 SCC 30 Important decision for employers as Supreme Court of Canada: Confirmed test for prima facie discrimination Rejected employee s argument that his addiction prevented him from coming forward to disclose Rejected premise that addiction alone is sufficient to establish prima facie discrimination Confirmed previous decisions and upheld termination 78

79 Stewart v. Elk Valley Coal, 2017 SCC 30 Termination for impairment in workplace is not discriminatory! No free accident rule is enforceable Addiction alone not sufficient to establish prima facie discrimination Every employer should be reviewing its policies in light of this decision 79

80 Summary Under human rights law in Canada, employers have an obligation to accommodate employees with marijuana addiction (a disability) and those who have a medical authorization for cannabis to treat another disability There are no human rights obligations regarding recreational users of pot It is not discriminatory to require employees to come forward to disclose addiction Employees who have an addiction yet fail to comply with policy may be terminated from employment Owners and Prime Contractors will expect employers to actively manage this issue 80

81 Somethin to Talk About Setting: Current Situation: Jerry, a heavy duty machine operator, employed by Sylvester Contractor s, was at a client worksite (Tweety Energy). Drug sniffing dogs employed by Tweety Energy detects traces of marijuana on his bag, in his assigned room, and decides to issue a site ban, prohibiting him from entering the worksite. 81

82 Drug Testing Cases 82

83 Drug Testing Suncor Energy Inc. v. Unifor Local 707A, 2017 ABCA 313 Grievance filed over practice of random drug and alcohol testing for those in safety-sensitive positions Tribunal grievance allowed; random testing too invasive Alberta Court of Queen s Bench overturned Tribunal decision Alberta Court of Appeal upheld QB decision and matter remitted to new arbitration panel; Tribunal incorrectly considered only evidence from bargaining unit Application for leave to SCC filed. ABQB issued injunction prohibiting Suncor from random testing, which will be in place until final decision rendered; injunction upheld by ABCA 83

84 Drug Testing Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 Implementation of fitness for duty policy that included random drug and alcohol testing Union grieved (prior to announcement of random testing) and arbitration began Union applied for interlocutory injunction to restrain implementation Application for injunction denied on the basis that testing would enhance public safety 84

85 Drug Testing Teck Coal Ltd (Fording Coal and Elkview Operations) and the United Steelworkers, Locals 7884 and 9346, 2018 CanLII 2386 Company had faced prior resistance from its United Steelworkers Union ( the Union ) on random drug testing in The Union unsuccessfully appealed to the Labour Relations Board in 2013 BC mining company s mandatory random drug and alcohol testing program was struck down on basis that it was an unreasonable exercise of management rights given the necessity to balance the safety and privacy interests of the parties The decision may be appealed The decision referenced the Irving Pulp & Paper judgment 85

86 Drug Testing Deciding factors: Unreasonable employee privacy invasion; and Insufficient evidence of a general workplace problem associated with drugs and alcohol to justify privacy intrusion Arbitrator found that employees in safety sensitive workplaces do not have a diminished expectation of privacy Arbitrator found no general workplace problem: despite a number of current and former employees testifying to drug and alcohol problems; and the employer s failure to produce hard evidence prior to the Random Testing Program, which illustrated a culture of drug and alcohol use tied to increased safety incidents 86

87 Drug Testing IBEW 1620 v. Lower Churchill Transmission Construction Employers Association, 2016 CanLII (NL LA) Employee terminated after admitting medical marijuana use at safety-sensitive, dry camp Clear policy regarding immediate termination Arbitration termination upheld Supreme Court actions warranted misconduct but termination excessive; issue of termination remitted back to Arbitrator 2 nd Arbitration just cause not established; employee reinstated without pay. 87

88 Fitness for Duty Policies Can prohibit use, possession and impairment at work Marijuana treated similarly to alcohol and other prescription or over-the-counter drugs with impairing effects Update policies Distinguish between medical marijuana use and recreational use Focus on impairment and fitness for duty 88

89 Fitness for Duty Policies Policies should address: Impairment; Fitness for duty; Obligations of employees; Disclosure; EAP; Protocols and procedures for testing; and Accommodation. Employee must be aware of policies and policies should be enforced Consider other policies i.e. smoking or scent policies 89

90 Management and Supervisor Training Signs of impairment: Smell of marijuana; Red/glossy eyes; Slurred/mumbled speech; Unsteady gait; Confusion; Unusual behaviour; Decrease in concentration; Heavy eyelids; and/or Dilated or constricted pupils Documentation is critical One sign will likely not be enough 90

91 Management and Supervisor Training Terms of the policy Zero tolerance Reporting requirements for employees Confidentiality Chain of communication Medical marijuana use vs. recreational use Safety-sensitive vs. non-safety sensitive Reasonable suspicion, post-incident, near miss Timeliness for testing Focus on impairment and hazards of impairing substances not the specific source (i.e. only marijuana) 91

92 Management and Supervisor Training Protocols and procedures Who investigates How investigation should proceed Who to turn to for guidance on facilitation of policy What to do when impairment suspected Whether testing is required Discipline Accommodation 92

93 Impairment at Work Keep an eye out for evidence of impairment Workplace accident Near miss Tip Reasonable suspicion document basis for this Step 1 Ensure immediate safety 93

94 Impairment at Work Step 2 Get a second opinion Step 3 Speak with employee confidentially and remove them from imminent danger or work area as discretely as possible Step 4 Assess the situation depending on employee s fitness for duty If no concerns, document and return to work If concerns, document, test (maybe), arrange for safe transportation Step 5 - Investigate 94

95 Impairment at Work Step 6 Determine type of use and whether discipline is appropriate Non-culpable Medical use and addiction Duty to accommodate Potential leave of absence Confirmation of disability (addiction) or use of medical marijuana Safety-sensitive position or not Return to work or last chance agreement 95

96 Impairment at Work Culpable Recreational use Substance abuse assessment Review of disciplinary record Determined appropriate discipline Issue discipline in writing 96

97 Thanks to Sarah Smith, Mathews Dinsdale, Toronto 97

98 Cannabis Possession at Work Just because marijuana is legal doesn t mean employees can bring it to work and use at work! Alcohol is legal but not (usually) permitted at work Possession can be prohibited unless employee has as part of an approved accommodation plan Investigation may result in searches where possession is suspected, you should consider: Policy; Consent; Whether justified and reasonable; Privacy concerns; Whether conducted in a systematic, non-discriminatory manner; and Union involvement 98

99 Legalization: Workplace Safety Recreational marijuana can be treated in substantially the same way as alcohol under employer s fitness for duty or drug & alcohol policy BUT taking into consideration that there could be accommodation for addiction/medical use Example: Employers can prohibit non-medical use during work hours and prohibit employees being at work while impaired (or hungover ) Violations can be subject to progressive discipline, up to and including termination for just cause 99

100 Legalization: Key Takeaways Be proactive Implement/update a fitness for duty or drug & alcohol policy to address recreational marijuana Remember: not one size fits all Educate employees on being fit for duty whether position is safety-sensitive or not Train supervisors and workers on policy requirements and to detect impairment in others provide tools and support to report concerns safely and confidentially Ensure that there is an employee assistance program (EAP) in place 100

101 Legalization: Key Takeaways Remember your duty to accommodate Employees with legitimate underlying health concerns can be managed in a number of ways: o leave of absence o alternative treatment/rehabilitation o temporary reassignment But an employee has to first disclose the need (Burton v. Tugboat Annie s Pub and Stewart v. Elk Valley Coal Corporation) Effectively manage privacy issues (FOIP, PIPA, PIPEDA) Understand and take steps to protect the confidentiality of medical information 101

102 Additional Resources COS Magazine Construction Owners Association of Alberta (COAA) Government of Canada Health Effects Canadian Centre for Occupational Health and Safety (CCOHS) 102

103 How Can We Help You? Coast to Coast Review of your current Drug & Alcohol policy and recommend updates for post-legalization and decisions like Elk Valley Coal Medical and Legal review of files (in-house physician) Review of safety sensitive classifications Working with your safety team to avoid accidents Defence of OH&S/Criminal Code charges with our team of former prosecutors and OH&S specialists Review your accommodation policy and provide best practices Assistance with discipline and/or termination for breach of drug and alcohol policies Advising on post-rehab return and Last Chance Agreements Manager and Supervisor Training Representation at labour arbitration Defence of human rights complaints Wrongful dismissal litigation 103

104 mathewsdinsdale.com

105 Questions? Loretta Bouwmeester Partner T F lbouwmeester@mathewsdinsdale.com Wilson Chan Associate T F wchan@mathewsdinsdale.com North America: Canada - Mexico - United States Central & South America: Argentina - Brazil - Chile - Colombia - Panama - Peru - Venezuela Western Europe: Austria - Belgium - Cyprus - Denmark - Finland - France - Germany - Greece - Ireland - Italy Luxembourg - Netherlands - Norway - Portugal - Spain - Sweden - Switzerland - United Kingdom Eastern Europe: Belarus - Czech Republic - Estonia - Hungary - Latvia - Lithuania - Poland - Romania - Russia - Slovakia - Turkey - Ukraine Middle East & Asia Pacific: China - India - Israel - Japan - Korea, Republic of - New Zealand - Singapore - United Arab Emirates mathewsdinsdale.com iuslaboris.com