As medical marijuana becomes more accessible, and recreational marijuana use becomes legal under the federal government's anticipated cannabis legislation, what effect could this have on health and safety?
So far, drug use has been a significant factor in only a few health and safety cases, says Jeremy Schwartz, a partner at Stringer LLP in Toronto. But that could change. During WSPS' Partners in Prevention conference and trade show this spring, Schwartz and his colleague Ryan Conlin explored implications for employers.
It is possible for employers to be prosecuted under the Occupational Health and Safety Act (OHSA)'s general duty clause if they permit an intoxicated employee to work in a dangerous situation, said Schwartz. However, except for the Metron case* there is no significant history of OHSA prosecutions where permitting substance abuse was a key factor.
What to do
Schwartz and Conlin offered these suggestions:
- Take all requests for accommodation of medical marijuana use seriously. Employers' duty to accommodate applies only to workers with disabilities. These workers must be accommodated unless doing so imposes an "undue hardship" - a high standard to meet).
- "Treat drug use in the same way you would treat alcohol use," says Schwartz. Except for the lack of a quick-results test for present (likely) impairment, it's no different from alcohol, he says.
- Introduce a zero-tolerance policy aimed at helping you meet your due diligence obligations. "Just because marijuana will soon be legal, doesn't mean that people should be allowed to show up for work under the influence of marijuana," says Schwartz. "Employers can say, 'We have the right to make sure you are fit for work.' Arbitrators have confirmed the right of employers to remove employees from the workplace who appear impaired."
- Include the possibility for reasonable suspicion testing of employees who admit to having abused alcohol or drugs in the past (see "When employers can test," below).
What not to do
- Do not conduct random drug and alcohol testing without solid grounds. "The Supreme Court has made the standard clear," said Schwartz. "It requires a significant amount of evidence to demonstrate that you have a historical problem with substance abuse before you can impose random drug and alcohol testing, even in safety sensitive positions." However, pre‐employment testing for safety sensitive positions may be permissible provided you do not automatically deny employment to individuals who test positive.
When employers can test
Schwartz and Conlin identified three circumstances under which employers are generally entitled to test employees for the presence of alcohol or drugs in their system. These circumstances are limited to employees in safety sensitive positions:
- there are reasonable grounds to believe that an employee is impaired on the job
- an employee has been directly involved in a workplace accident or high risk near miss
- an employee is returning to work after treatment for substance abuse
In their closing remarks, Schwartz and Conlin observed that while legalization of marijuana may lead to more recreational use the applicable legal tests and standards will continue to apply. Don’'t become pre‐occupied with the testing issue, they said. Focus instead on a policy that helps you meet your due diligence obligations.
How we can help
WSPS consultants are standing by to help you develop and implement a documented health and safety system, or specific components.
Jeremy Schwartz - firstname.lastname@example.org, 416-862-7011 and Ryan Conlin - email@example.com, 416-862-2566, both partners at Stringer LLP, are available to provide legal advice in the development and enforcement of an alcohol and drug use policy.
*On Christmas Eve 2009, three Metron Construction workers and one supervisor died when their swing stage scaffold collapsed and they fell 13 storeys. None of them had lifelines, and three of the four, including the supervisor, had recently ingested marijuana. A site supervisor was later found guilty of criminal negligence under the Criminal Code, as amended by Bill C-45, and sentenced to three and a half years in prison.