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Cannabis What cannabis legalization means for Canadian employers

A medical marijuana user lights a joint in Vancouver.

John Lehmann

From impaired employees to health-care coverage for medicinal use to accommodation for addiction and drug testing, Canadian employers have many concerns about the impending Cannabis Act.

About 81 per cent of human-resources managers believe legalization will have an impact on their workplace and three-quarters expressed concern about the impact it will have on the HR function, according to a nationwide study by Quebec’s Ordre des conseillers en ressources humaines agréés, or CRHA. A similar study by the Human Resources Professionals Association (HRPA) in January, conducted just in Ontario, found that 71 per cent do not feel prepared for legalization, with almost 48 per cent citing concerns about ensuring a safe workplace.

One concern expressed by members in the HRPA’s Ontario study is the costs associated with the potential increase in demand for medicinal marijuana coverage on employee health plans, as only 4 per cent of HRPA members currently offer it. Meanwhile, a recent report by Benefits Canada, an HR industry publication, found that medicinal marijuana could actually serve to reduce health-care costs as it can be less expensive than alternative treatments.

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The most significant challenge, according to HRPA vice-president of public affairs Scott Allinson, will be for an employer or HR professional to determine whether an employee has come to work under the influence of cannabis. Since there is arguably no accurate way to measure impairment from marijuana, complications could arise if an employee suspected of impairment is involved in an incident.

“It’s a terrible thing to say, but I think everyone’s waiting with bated breath to see the first test that comes to either the Human Rights Tribunal or a civil suit,” Mr. Allinson said. “My one recommendation is, don’t be the test case; don’t come to work high.”

Mr. Allinson adds that such circumstances are not specific to the Cannabis Act, but some fear the frequency of situations involving impaired employees could increase as a result of its passage.

Despite these concerns, however, employment law and human-resources professionals suggest many organizations will be able to adapt present policies and procedures addressing alcohol and prescription medication.

“All that changes now is if you have a substance-abuse problem, your employer now has a duty to accommodate,” Mr. Allinson said, adding that that provincial human-rights legislation requires employers to treat substance abuse and addiction as a disability. As a result, employers must accommodate any employee suffering from addiction to the point of undue hardship.

Stuart Ducoffe, an employment and labour lawyer and founder of Toronto-based HR and employer law support firm E2R, agrees that not much will change from a corporate policy perspective as a result of legalization, although it may lead HR staff into some uncharted territory.

For example, he poses the hypothetical scenario of an employee refusing to allow a colleague to drive them to a sales call in the morning if the colleague has admitted to consuming cannabis the night before.

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“[The employer will say,] ‘Our policy says you can’t be under the influence.’ And the employee says, ‘I’m not.’ So do we now say, ‘Go get an independent medical exam to prove it’?” Mr. Ducoffe said.

While such situations may prove to be a challenge for Canadian employers and HR professionals, Ryan Anderson, a partner at Vancouver-based workplace and employment law firm Mathews, Dinsdale & Clark LLP, says they’re not so different from alcohol consumption.

“The HR manager couldn’t run out there with a Breathalyzer, because they don’t have one,” he said. “They’re faced with the exact same problem, which is essentially a matter of asking the right questions, assessing all of the circumstances, determining whether the concerned employee is doing so in good faith. All else being equal, the advice I’d give is to do the assessment and err in favour of safety.”

Mr. Anderson’s recommendation to employers and HR managers is to ensure existing policies address recreational and medicinal marijuana, and to use legalization as an opportunity to review those policies with staff.

“The most important thing is to revisit your policy and if you don’t have one, you should," he said. "Consider what you have in place and to what extent it needs to be adjusted to deal with legalization. In some cases, it will take 15 minutes; it’s just a minor adjustment, which illustrates how not that much has changed.”

The CRHA recommends that the policy should be amended by human resources, legal, communications and union or employee representatives, and reviewed one year after legalization to incorporate any changes.

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“It’s a great opportunity to work with groups of employees to build that policy, not doing it in a closed office with only HR,” said Manon Poirier, general director of the CRHA. “What should be there is just clear rules on what is tolerated and what is not, and then communicate those rules before Oct. 17."

Employers with safety-sensitive environments, such as those that require the operation of heavy machinery, physical labour or health-care facilities, should also consider training managers to identify when an employee is under the influence.

“The amount of effort you should invest in terms of training and processes and protocols may be higher if you’re in a high-risk environment,” she said. “But organizations that deal with high-risk jobs are probably most prepared already."

Ms. Poirier adds that policies should also provide resources for employees who may be struggling with dependency or addiction.

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