Clearing the air on cannabis

The flurry of news articles on the upcoming legalization of cannabis is everywhere and seems to be creating substantial fear among most employers.

Much of this fear, of course, is about having to deal with the unknown. For instance, will recreational cannabis use increase among employees and how will this impact the workplace? What about medical marijuana? Are employers ready for this new challenge? Will current policies stand the test against cannabis?

Interestingly enough, a recent report by the Human Resources Professionals Association of Ontario and the consulting firm Deloitte suggests that 22 percent of Canadian adults already consume recreational cannabis.

Their survey went on to indicate that another 17 percent of respondents were willing to try cannabis once legislation is passed.

Therefore, many HR professionals are anticipating the new legislation will bring several economic, regulatory, social and health challenges to our workplaces that we are currently not addressing.

The Deloitte project, for instance, surveyed the membership of the Ontario Human Resources Association and identified that 45 percent of respondents did not believe their current workplace policies addressed the potential new issues that will arise with the upcoming recreational cannabis legislation.

The study identified four areas of concern including safety in the workplace, the employer’s duty to accommodate, the impacts on drug benefit plans and the issue of drug testing.

One of the key employee safety concerns raised in the survey was the issue of employees driving.

Cannabis is known to cause a wide spectrum of different effects on people, ranging from overall happiness to a lack of concentration and impaired memory. That’s because the THC ingredient found in cannabis is quickly absorbed by the brain, with impairment peaking within 20 to 40 minutes after inhaling, or 1.15 hours after consumption.

The second area of HR concerns related to the issue of accommodation for disabilities that may be treated through the use of cannabis.

This was especially so when considering the common mistake made when people make assumptions regarding an employee’s ability to do a job and what type of accommodations are required.

At the same time, medical marijuana has actually been legal since 2001, and workplace policies and procedures for medical marijuana have been put in place and are the same as any other prescription medication in the workplace. So, while HR professionals and managers are spending time worrying and debating issues such as frequency of use, Tracey Epp, a partner with the Pitblado Law firm, suggests that the issue of impairment in the workplace is not new, and so the introduction of cannabis is really no different than that of alcohol.

In other words, medical and/or general marijuana users are not entitled to attend work impaired. Every employee must arrive at work sober and ready.

Therefore, subject to medical conditions, employers will still be entitled to discipline an employee when their use of recreational marijuana has an adverse impact on their job performance, when this use contravenes legislation and/or when this use and possession is contrary to an organization’s established policy.

Organizations are also concerned that more employees will acquire a medical prescription, thus putting extra cost pressures on benefit plans. There are also potential human rights risks for the denial of coverage.

For instance, at least one decision from Nova Scotia has already concluded that failure to include marijuana in drug coverage may be discrimination.

At the very least, organizations need to be having discussions with their benefit providers.

Finally, HR professionals have growing concerns about the issue of drug testing, especially for safety-sensitive positions.

The challenge for management is that there is little supportive research on the longer-term effects of marijuana.

In other words, there is no answer to the question of whether someone who used marijuana one day previously would still be impaired the next day.

Currently, the federal government has recently proposed that 5ng/100ml of blood or 2ng/100ml of blood mixed with 50ng of alcohol per 100ml of blood as the definition of criminal impairment. However, these numbers have yet to be tested. There is currently no available, accurate drug test for cannabis impairment.

Therefore, if any new policy was to be instituted, employers need to carefully examine and present a legitimate concern for workplace safety and as well be sure to give consideration to the issue of employee privacy.

The best bet is to continue monitoring the issue and revising drug testing policies so that you are current with legislation and best practices.

On the other hand, this lack of accurate drug testing for cannabis suggests that the best solution at this time is to apply the same proof of cannabis impairment as you would use for alcohol impairment in the workplace.

This includes confirming signs of impairment such as bloodshot eyes, obvious sleepiness, a sense of lethargy, a lack of coordination, confusion, a lack of focus and/or obvious memory impairment and misjudging time.

At the same time, Epp points out that another challenge for employers is simply the acceptance of the fact that society has embraced and normalized marijuana and although everyone has their own personal assumptions about it, the legislation is well on its way and must be integrated into our workplace policies and practices.

She also suggests that it is not the role of human resources professionals to be rooting out and punishing cannabis abusers, it’s more about ensuring a safe workplace and getting people help, should it be needed, so that they are ready and able to perform their work.

Therefore, although Epp doesn’t believe this new legislation will have a significant impact on current workplaces overall, she suggests there are still things that can and should be done to ensure corporate readiness.

The first thing is to get educated.

Secondly, she suggests new legislation is an excellent time to review your corporate human resources policies, especially since they may not have been updated for some time.

Determine if the policies are compliant with current legislation and what needs to be done to bring them up to date on the new legislation.

In particular, take note of your requirements for safety- and non-safety-sensitive positions, and your policy regarding smoking in the workplace as well as accommodation at work.

As an HR professional, I certainly sense the wave of fear that’s flooding the thoughts of management. However, in my view, management needs to take the lead in helping their organizations embrace this upcoming change.

It’s time to rethink and resurrect your change-management strategies.

Determine which strategies would work to quickly get management and employee understanding and buy-in of this new legislative change. Is it possible to create a focus group of managers to review your policies, discuss potential risks and recommend changes as required?

Finally, treat this new legislation the same as you would with any other change that might impact the operation of your organization. Don’t panic, get educated, review changes when necessary and act.

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