6 ways to prepare for marijuana legalization

Jul 29, 2016

By Loretta Bouwmeester

MarijuanaIn just about one year, marijuana is expected to be legalized in Canada. However, there are no details on what this means and what tools will be made available to employers. So far, there has been no indication this will include explicit legislation allowing employers to carry out post-incident, reasonable cause, random or other testing.

The effect of this change is that employers will no longer be challenged just with the legal use of prescribed medical marijuana; they will also be confronted with the myriad of issues associated with legal recreational use - use that may be carried over into workplaces. At your holiday party or summer work picnic, your employees could be getting high in the parking lot - not hiding it, but doing it out in the open because it will be legal to do so. Impaired driving caused by employees drinking alcohol was previously the main concern at work-related social functions. Now, driving high has to be on your radar, especially if your employees have driving as one of their regular job duties and your workplace is a safety-sensitive one.

But is marijuana impairment for one user the same as another? Not to the same extent as alcohol. Different users have different tolerances. Smoking marijuana has a faster impairing effect than drinking alcohol. The effect also dissipates faster. Driving patterns are different, too, often being slower, not faster, and not necessarily with drivers veering outside the lines, as is often the case with alcohol impairment. As not all users are affected in the same way, this makes setting thresholds difficult. Testing thresholds in workplaces are typically established on the basis of 4 nanograms per millilitre. Some US states have set their threshold at 5.

In Washington State, marijuana has been legal for about two-and-a-half years. Since this time, there has been a sharp increase in marijuana involved in impaired-driving cases. Brian Capron, a toxicologist who assesses blood samples from 13,000 drivers per year, says one-third of the impaired drivers in the state are testing positive for marijuana. In the state of Colorado, where the use of the drug has been legal since 2014, there has been a similar experience.

As workplace use is likely to rise as a result of legalization, identifying impairment will become that much more important here in Canada.

So far, there is no universally accepted work site test for marijuana like there is the breathalyzer for alcohol testing - but this could soon change. A Vancouver-based company, Cannabix Technologies, is developing a marijuana breathalyzer. The device allows real-time analysis of exhaled breath without any cumbersome extraction techniques. The device is expected to undergo field testing in the coming months.

Liberal MP Bill Blair, who has the job of developing the new law, is looking at oral fluids testing for roadside testing purposes, which is a method used in Europe.

6 do's and don'ts

There are many things employers need to consider now that marijuana is expected to become legal in Canada.

  1. Do have a drug and alcohol policy that addresses workplace impairment from prescription, over-the-counter and illegal drugs.
  2. Do ensure the policy is effectively implemented, training is provided to workers and supervisors, and the consequences for failing to comply with the policy are understood.
  3. Do accommodate an employee where there is a legitimate underlying disability. This could include an independent medical exam, leave of absence or temporary reassignment.
  4. Do train supervisors and workers to identify impairment in their co-workers and give them tools to report concerns to a safe place in the organization where the concern will be acted upon.
  5. Don't get distracted by the source of the impairment; focus on the issue of impairment and the hazard it represents.
  6. Don't think that all employees are aware of the dangers of driving high and how being high can negatively affect their ability to do their job safely.

Ultimately, marijuana is an impairment-causing substance that employers should proactively address. As more details are released regarding regulation, and as the legalization date looms employers need to get ready to communicate expectations to employees, train them on effects of the drug, explain the hazards marijuana use presents in the workplace, and ensure they have sufficient controls in place to address its potential workplace use.

Loretta Bouwmeester is a partner in the National OHS & Workers' Compensation Practice Group at Mathews, Dinsdale & Clark LLP in Calgary. Loretta can be reached at lbouwmeester@mathewsdinsdale.com or 403-53-5042.