Accomodation Legalization Marijuana Medical Authorization

Time is not on our side – Legalizing Marijuana

So I recently attended a seminar on the legalization of marijuana and its impact on the workplace… There were well over 200 people in the room representing a variety of employers in the Calgary area.  With each speaker I became more anxious listening to the what the implications of this new legislation would be for employers in Canada and the potential health and safety implications in our workplaces.  I couldn’t image as I scanned the room how those 200+ people were feeling as they listened intently.  I’m sure they were feeling overwhelmed by it all, I know I was…

I remember many times in my past administering my company’s drug and alcohol policy on a Friday afternoon when we had just hired a handful of labourers to start a job the following Monday in Fort McMurray… passing a Pre-Access Drug and Alcohol Test was a requirement of the job we were hiring them for.    Sometimes I’d be lucky if we got a 5-10% pass rate on the drug & alcohol test, the majority testing positive for pot.  Maybe it was the demographic we hired or the transient type of worker, it was always challenging.  July 2, 2018,  getting access to marijuana will be easier just like buying liquor, and I guarantee there will be an increase in its use…    With all the other pressing issues you have to deal with – will you be ready? Who else do we need to engage with to tackle this issue?  Avoidance isn’t an option… the law will go through there is no turning back.

The good news, you have till October 17, 2018 when it becomes legal so you have time… but time goes by fast if you aren’t prepared.  Maybe you already have a policy then it’s just a matter of updating it.  That could be a false sense of security… I’m not trying to scare you but I think employers need to pay attention… this will be a game changer and could have serious implications for your health and safety programs and the safety culture within your organizations.  To continue the good news story, the Alberta government has released its framework for how legalization will be handled and have identified drug impaired driving and impairment in the workplace as two areas that will need to be addressed among others such as what will be the minimum age.  The framework however, doesn’t go into any great detail.   Many industry associations are working with their industry partners to get a handle on this and provide guidance to its members.  One association I encourage you to check out, is the Construction Owners Association of Alberta website and review their Canadian Model – Alcohol and Drug Guidelines.  This is a Best Practice that has stood the test of time and can provide you with excellent guidance and direction for your own programs and policies.

The bad news and the current reality is, some of your employees may already have a medical authorization to use marijuana.   When the law first passed in 2014 there were only 28,000 people in Canada who met the criteria.  In the last three years this number has increased but not all these people are using the drug as prescribed.  In many cases these people are self medicating and/or have become chronic users as a result.  Marijuana can be addictive.   Would you know who these people are?  Are they working in safety sensitive positions? Do we even know the impact of marijuana on their ability to perform their job and the safety of others? Are these employees driving a company vehicle or operating a piece of equipment?

Up until now, drug and alcohol programs addressed marijuana from an illegal standpoint, so pretty straight forward… when its legalized individuals will have access to pot for personal use just like liquor.  Am I being Captain Obvious -think about it… You have a crew out of town for work, sitting in their hotel rooms, coworkers text each other and say let’s go for a beer, one worker decides to go out for a smoke first (because he can legally use pot) then joins his buddies.  Next day he’s a bit groggy… they were all up well past midnight and the crew is scheduled to start at 7 AM.  He’s the driver of the crew truck… hopefully you see where I’m going with this.

If your company has no policy in place to deal with drugs or alcohol in the workplace, time is NOT on your side.  Just imagine, when marijuana becomes legal, an increase in its use is inevitable.  Here’s another scenario – You have a Director working for your company, she is dealing with chronic pain as a result of a car accident suffered years ago, she is told by a friend to try marijuana as nothing else has seemed to work.  She starts self medicating and her performance at work begins to suffer.  The landscape around drug use will change…  The federal government is leaving the onus up to employers essentially to deal with the repercussions and take responsibility.  Fair or not, that’s our reality.  So best to get your ducks in a row now, and not wait!

Some of my take aways were: ​

  • Impairment from marijuana use is different from alcohol and is harder to detect when a person has used recently.  Aside from smoking someone can eat the drug and you might not know they have.  The concentrations will range from 3% – 90% when the drug is produced in its various forms.  Currently, there is NO test for impairment.
  • 21% of adults in Canada say they’ve regularly used marijuana.  17% say they will try it once it is legalized. That’s close to 40% of the adult population.  Think about your workforce… how many people does that mean for your workplace?  Additionally, Canada and US are the largest users of opiates in the world. Many of these people are using these drugs for chronic pain management.  If you thought this wasn’t a big deal, think again.
  • There are very few studies on marijuana around the long term affects, impairment, and it’s use because it’s been illegal up until now.  There is a ton of catch up to do.
  • Chances are someone in your workplace will have a medial authorization to use marijuana. They should be treated no different than those with medical prescriptions where the impacts of its use can affect their job.  Are they in a safety sensitive role? Do you know who these people are?
  • How many use contractors or work on sites as Prime?  How will you manage this issue with your contractors?  You don’t want to be held responsible for an employee from another company… it’s important to ensure that your contractors are addressing marijuana legalization in their own policies and programs.
  • Just because an employee says they are medically authorized to use medicinal amounts of marijuana should not deter you from asking them to prove this by providing documentation and asking their doctor whether or not they can safely perform their job based on the hazards and their occupation.    The rules around alcohol in the workplace will and should apply here…

So, what’s your next move?

  • Ensure your current policy is updated to include self-disclosure and medical marijuana use.  Start looking at how your policy should change when marijuana becomes legalized.
  • Communicate, communicate and communicate some more to your staff.  Get this issue front and centre with folks now.  Start the conversation early so employees are aware of your company’s stance.
  • Train your supervisors on how to respond to someone who might self-disclose, deal with performance issues that arise and to spot the signs of impaired workers.   They are the front line and you want to set them up for success early.  They can also be the break down which could lead to litigation.
  • Ensure employees understand the implications of use if in safety sensitive positions and give them ample opportunity to self-disclose.

Other legislation that must be considered around this topic is Human Rights, Privacy and Employment law.  The Duty to Accommodate, Terminations, and Bona Fide Occupational Requirements (BFOR) came up in terms of handling cases where someone has self-disclosed, tested positive on a drug test, is having job performance issues, and/or is using and in a safety sensitive position.    As safety people this is the time to bring in your Human Resource (HR) team to work through with us on next steps.  The line in the sand gets washed away at this point and engaging our business partners in HR is critical.  There are resources available for those without HR support.   I have listed some publications below that are helpful if you are looking for more guidance in this area.  Lastly, I don’t think we can broadly apply our approach to everyone the same way, other than by ensuring it’s done in a consistent manner through established processes and procedures.

This can be a very complex and convoluted topic, but I think it’s an important one to get ahead of.  That’s where a solid communication plan becomes important…get in front of your employees and remind and talk to them about the policy.  If you are updating it, then timing couldn’t be better to inform your work force.   Encouraging people and giving them a safe haven to self-disclose so you can deal with it early is key.     Ignorance is not bliss in this case… self-disclosure will give you an idea of how prevalent the use is among your current workforce.   Employees will need to know it’s okay to come forward and that there will be no retribution.  Supervisory staff then need to be trained to respond effectively and be able to handle these scenarios.  It takes one supervisor to upset the apple cart and lead your organization down a litigious path.

Why do I care so much about this topic?  I do believe this will become huge for health and safety professional having to deal with the impacts of drug use and mental health in the workplace.  These issues often land in safety’s lap as employees feel they have no other place to raise their concerns.  Society as a whole is talking more about these issues through awareness and changes to legislation such that more and more people are self-identifying and coming forward.  People are suffering emotionally and physically and are therefore medicating to cope with life in a lot of cases.  Foolish to not think this is being brought into the workplace.  Many of these people are working in hazardous environments, operating heavy equipment, driving on our roads or making decisions that will impact an organization.  We have a responsibility to protect the health and safety of our workers which is shifting beyond just protecting their physical safety… do our employees feel psychologically safe to speak up, self disclose and/or report an issue in the workplace.

I have provided some additional resources for you to consider and my take away for you should you wish to review them,

Disclaimer:  Comments/opinions/advice made in writing this article are interpretations of the presentations made, based on my personal experience and are my own interpretations of legislation.  I am available to assist employers who wish to address and update their drug and alcohol policies and/or programs in advance of the legalization in 2018 and can provide training to supervisory staff on this subject should you need assistance. 

 

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