Part of cannabis laws and regulations
Doug Harrison didn’t want to pry into the job applicant’s medical history, but he had to know if the aspiring firefighter’s cannabis prescription might put his team in danger out in the bush – where those spending 12 hours a day battling blazes across British Columbia are already impaired by fatigue.
Sheepishly, the man said he got the prescription to alleviate his constipation. Pressed further, he admitted it was just a cover for his recreational habit.
Rather than dismiss him outright, Mr. Harrison and the applicant went through his company’s official substance abuse and impairment policy line by line so the man understood that his offer of employment would be terminated if he tested positive for any traces of the drug and that he was not allowed to be high on the job. The man was hired halfway through last year’s wildfire season and completed his contract without issue, Mr. Harrison said.
“What you do on your own time is your own business,” said Mr. Harrison, who owns and operates the wildfire fighting firm Apex Forest & Wildfire Services out of Nelson, a small town in B.C.’s Kootenays that is known for its lax attitude toward cannabis. “Just don’t let what happens on your own time overlap onto our time … because that’s when other rules and regulations come into play that dictate you can’t do that.”
It’s a scenario many employers across the country could soon face when recreational cannabis becomes legal this year: How should they handle marijuana use by employees before or at work?
Companies are being told that legalization should not change how they treat people who come to work impaired. But clarity on how legal cannabis will affect the workplace is unlikely to come soon from Ottawa, which recently signalled that federal rules for workplace drug testing will not be in place when legalization takes effect this year. A committee of federally regulated employers, labour groups and bureaucrats said last month that it is at an impasse as to how the government should craft those rules.
Instead, guidance about cannabis use in and around the workplace is being provided through a patchwork of arbitration, human rights tribunal rulings and court cases involving “safety-sensitive” sectors such as firefighting, where a mistake on the job can have dire consequences for workers, the public or the environment.
Roughly one in 10 Canadians who responded to a federal government survey said they had consumed cannabis at least once in 2015, but the number could climb once the substance is legalized. The Tobacco, Alcohol and Drugs Survey also showed that figure almost doubles among older teens and rises to 30 per cent of young adults between 20 and 24.
In a new Health Canada survey of cannabis users, more than three-quarters of respondents said they had not used the drug before work or on the job. One in 10 reported using cannabis before or at work less than once a month, while 8 per cent said they used it in those circumstances every week or every day.
Across the country, people using illegal drugs cost the economy $11.8-billion in lost productivity each year, according to the government-funded Canadian Centre on Substance Use and Addiction.
Beyond those surveys, virtually nothing is known about why Canadians use cannabis on the job or how common it is for people to consume it at work, said Nancy Carnide, a postdoctoral fellow at the Toronto-based Institute for Work & Health. And there is little quality research coming from Colorado and Washington, states that legalized the drug several years ago, she added. (A survey of 214 employees of Colorado cannabis companies, published last month, showed many consumed the drug on the job and, though they were concerned about safety, did not often have adequate health and safety training.)
“What it all boils down to is we hear anecdotally about different industries or occupations where substance use is more common, but we don’t have high-quality data,” she said.
Dr. Carnide is a member of a team that was recently awarded a $100,000 government grant to survey 2,000 workers across a variety of industries and then conduct focus groups with “potentially higher-risk” sectors such as construction, mining and transportation. The study will examine how use of the drug affects on-the-job safety, performance and productivity, she said.
It could also inform efforts to reduce the harms posed by cannabis, such as gathering a consensus on appropriate wait times between consumption and driving or operating heavy machinery, she said. The Centre for Addiction and Mental Health’s lower-risk guidelines released last year pegged the minimum amount of time at six hours.
“We need to understand what their perceptions are around cannabis in the workplace, their knowledge of cannabis and why they may be using cannabis,” she said.
Brad Cocke, a Vancouver-based labour lawyer, said substance use in the workplace has been an issue for years, but legalization has brought cannabis “to the forefront of employers’ thinking.”
Recent arbitrations and court rulings have said companies only need to prove employee use – not impairment – for someone to be declared a safety risk while on the job, Mr. Cocke said. That proof can come from managers who catch someone smoking, smelling of the drug or acting strange with bloodshot, watery eyes.
Tom Yearwood, founder and CEO of Denning Health Group, which helps companies develop alcohol and drug use and testing policies, said employers should simply adopt whatever THC limits – the psychoactive compound in cannabis – the federal government eventually uses for impaired driving laws.
In Colorado, if a worker is above the legal THC limit, they have a chance to prove they were not impaired - showing, for example, that they smoked some cannabis several days earlier but not immediately before coming to work.
“The burden is on the defendant to explain why they weren’t impaired,” Mr. Yearwood said.
To get ahead of any legal trouble, employers must develop easy-to-understand drug policies in concert with any unions and must have a “frank, open and honest conversation” with each employee about their use of drugs before an accident or problem occurs on the job, Mr. Yearwood said.
And an employee must inform their boss if they have addiction issues, at which point the company should try its best to accommodate that worker and help them get treatment, he added.
The country’s biggest airlines, train and trucking firms, construction companies and transit authorities want the government to allow them to conduct mandatory drug tests for key members of their work forces. There are mandatory drug tests for truck drivers in the United States, and the Canadian Trucking Alliance is calling for the same system here.
But unions have long opposed such testing in court, saying they are a violation of human rights and unlikely to improve workplace safety. Oil giants such as Suncor Energy Inc. and agencies such as the Toronto Transit Commission have been waging legal battles to impose drug tests in recent years. While the TTC is conducting random tests among two-thirds of its 15,000 employees, the matter remains before an arbitrator and the tests could ultimately be ruled illegal.
Another recent arbitration, involving Teck’s five coal mines in southeastern B.C., declared in January that the company’s random testing regime had violated worker privacy. Those rules were knocked down despite one employee testifying that a “work hard and play hard” culture saw miners partying all night before grabbing a couple of hours of sleep and reporting back for a shift.
Companies can choose to look past prospective employees who fail pre-employment drug tests, but they need to ask themselves if it is worth it, Mr. Yearwood said.
“My advice to clients is that they consider whether or not they want to exclude from their work force people who use marijuana,” he said. “Major national railways are complaining that they can’t get enough qualified applicants because they keep testing positive for dope.”
In Colorado, there is a general trend away from testing, as companies scramble to hire younger people amid low unemployment rates, said Curtis Graves of the Mountain States Employers Council, a Denver-based non-profit association that assists companies in the region with employment law.
“Food service, hotels, resorts – they all attract a lot of young people who would tend to use it much more than that one-in-seven rate [observed in Colorado],” Mr. Graves said. “They got to have staff until the robots can run the ski lift – so they’re just having to tolerate the off-duty usage.”