By Heather Douglas
“Impairment in the workplace can have severe consequences. There are many sources of impairment such as fatigue, use of drugs (over-the-counter, prescription, illicit), consumption of alcohol, etc. We are discussing the implications associated with the use of cannabis for both therapeutic and recreational purposes. The key steps to reducing the impact of impairment in the workplace are to have appropriate mechanisms in place, to provide clear guidance to all workplace parties, and to apply workplace policies and programs using a fair and consistent approach.” Workplace Strategies: Risk of Impairment from Cannabis, published by Canadian Centre for Occupational Health and Safety (June 2017).
The bad news is that in Canada, the impact on the workplace when the use of recreational cannabis is legalized is unknown. “Legalization will not necessarily change existing workplace policies,” says the Canadian Centre for Occupational Health and Safety (CCOHS), “but it is generally felt that, at least initially, more people may use cannabis when there is a regulated market for adult use.”
Employers must continue to provide a safe work environment and take all reasonable precautions to protect the health and safety of its employees and others in the workplace, says Occupational Health and Safety (OH&S) legislation in every province in Canada. This duty is known as due diligence.
“Due diligence is the level of judgment, care, prudence, determination and activity that a person would reasonably be expected to do under particular circumstances,” is how the Criminal Code views it. Reasonably practicable has been described by the Labour Program (Canada) as “taking precautions that are not only possible, but that are also suitable or rational, given the particular situation.” It’s up to the employer to determine that what should be done is usually done on a case-by-case basis.
In the eyes of the law, employers need to “exercise due diligence” so should work with its internal safety, health, and the environment committee (SHE) to create and implement a plan that identifies possible workplace hazards, including the impacts of possible impairment, and carries out the appropriate corrective action to prevent incidents or injuries, says CCOHS in its white paper.
According to Canada’s Human Rights legislation, if any worker has a diagnosed medical condition or disability, that person is encouraged to self-disclose his/her need to take medications (including cannabis for therapeutic reasons that may cause impairment or result in diminished functionality). The employer then has a duty to accommodate that worker.
The legislation also stipulates that anyone dependent on drugs or alcohol – referred to as substance dependence – is classified as a disability. The employee should be accommodated, whether that means they are permitted to do their job or assigned to other work as appropriate, while they are seeking treatment for their dependence.
The courts recognize that sometimes accommodation is cost-prohibitive to the company or can create other health and safety risks that are untenable to the employer. “Employers must be able to prove undue hardship and demonstrate quantifiably they have taken all reasonable measure to provide accommodation” including:
• Cost of accommodation (e.g. so substantial it would alter the essential nature of the enterprise);
•Change to structure/organization of work (e.g. so significant it would substantially affect the company’s viability); and
• Resulting risk to health or safety.
More bad news. Each case will be assessed independently as there is no standard definition of undue hardship.
Cannabis Impairment Effects on Body
Health Canada reports that cannabis contains hundreds of chemical substances, among which more than 100 are known cannabinoids (a class of chemical compounds that act on receptors in cells, in the brain, and in the body). Tetrahydrocannabinol (THC) is the chemical responsible for the psychoactive effect or high. Another key component, cannabidiol (CBD) may be useful in treatment-resistant epilepsy in children and adults and does not produce a high.
“When inhaling cannabis,” notes Health Canada, “the chemicals in the smoke pass from the lungs into the blood, which carries the chemicals throughout the body and to the brain. The effects of cannabis are delayed if it is ingested instead of smoked, because the chemicals must first pass through the digestive system. Users have varying sensitivity to the effects of THC but regards, the effects may include:”
• Dizziness, drowsiness, feeling faint or lightheaded, fatigue headache;
• Impaired memory and disturbances in attention concentration and ability to think and make decisions;
• Disorientation, confusion, feeling drunk, feeling abnormal or having abnormal thoughts, feeling “too high” feelings of unreality, feeling an extreme slowing of time;
• Suspiciousness, nervousness, episodes of anxiety resembling a panic attack, paranoia (loss of contact with reality), hallucinations (seeing or hearing things that do not exist);
• Impairment of motor skills and perception, altered bodily perceptions, loss of full control of bodily movements, falls;
• Dry mouth, throat irritation, coughing;
• Worsening of seizures;
• Hypersensitivity (worsening of dermatitis or hives);
• Higher or lower blood levels of certain medications;
• Nausea, vomiting; and
• Fast heartbeat.
As Health Canada states, “Using cannabis or any cannabis product can impair your concentration, your ability to think and make decisions, and your reaction time and coordination. This can affect your motor skills, including your ability to drive. It can also increase anxiety and cause panic attacks, and in some cases cause paranoia and hallucinations … These effects have been noted to last as long as 24 hours.”
The National Health Services in the United Kingdom published data in 2016 indicating that data from a urine sample for THC reveals the following:
• An occasional or first-time user would probably test positive up to four days after last using;
• A frequent user would probably test positive up to 10 days after last using; and
• A Very heavy user could test positive up to one to two months after last using.
Can an Employer Determine Impairment?
“Currently, there are limited means to determine impairment from cannabis through testing methods. More testing methods have been explored in terms of testing for impairment while driving. In 2015, the Government of Canada stated, ‘In contrast to alcohol, there is currently no roadside breathalyzer-type test to detect impairment with marijuana.’ Roadside testing tools to measure THC in a driver’s system are in development.” Department of Justice, 2017.
The Canadian Human Rights Commission ruled earlier this year, “Workplace drug testing is a complex issue involving many factors, such as: human rights law, safety, privacy, labour standards, the provisions of collective agreements, regulatory requirements, and the level of supervision available at the workplace. Unlike a breathalyzer, a positive drug test result [whether from an analysis of the blood, breath, urine, or saliva] does not necessarily prove that someone is impaired in that moment, and should not be taken as concrete evidence of substance dependence.”
Employers are cautioned to provide training to its supervisors and employees on the impact of impairment, how to recognize it, and how to properly respond to possible signs of impairment. “Substance testing is generally considered discriminatory on the basis of disability and perceived disability and is only recommended in specific situations, reports the Canadian Centre for Occupational Health and Safety (CCOHS). “Employees who appear to be impaired in the workplace should always be assessed according to employer policies. Urine levels of THC do not correlate with impairment. Blood levels correlate more directly, however, all assessments should include an overall evaluation of impairment.”
It’s up to the supervisors to observe if an employee is suffering a possible impairment – is there a change in that person’s behaviour or ability – that could lead to risk of injury, illness, or incident to that person, others, or the environment.
•Does the person have the ability to perform the job or task safely (e.g. driving, operating machinery or equipment, use of sharp objects)?
•Is there an impact on cognitive ability or judgment?
•Are there other side-effects of the medical condition or the treatment that need to be considered?
Employer Obligations
“In the case of cannabis use and the workplace, the employer should consider workplace policies and programs as they may relate to impairment from any source such as alcohol, medications (used legally or illegally), cannabis (recreational or therapeutic), or any other substances.” Workplace Strategies: Risk of Impairment from Cannabis, published by Canadian Centre for Occupational Health and Safety (June 2017).
Energy processing companies run operations that requires the strictest adherence to safety, health, and the environment. Therefore, it behooves that employer to implement a substance use policy that addresses the risk of workplace impairment. Ideally, this would be jointly drafted by labour and management as well as the health, safety and environment committee and approved by the board of directors.
“The policy should clearly indicate the organization’s position regarding whether employees can or cannot use, possess, or be under the influence of substances while at work,” says the Canadian Centre for Occupational Health and Safety (CCOHS). It also recommends that prevention initiatives be included:
•Statement of purpose/objectives of program;
•Definition of substance use and substance dependence;
• Definition of what employer considers to be impairment;
• Statement of who is covered by the policy and/or program;
• Statement of employee’s rights to confidentiality;
• A mechanism for employees to confidentially report when they have been prescribed a medication that may cause impairment;
• Statement regarding if either medical/therapeutic or non-medical substances are allowed on the premises, or under what situations they may be allowed;
• What arrangements have been made for employee education (e.g. general awareness regarding substance-dependence);
• What arrangements have been made to educate and train employees, supervisors, and others to identify impaired behaviour and what steps will be taken;
• Provisions to assist those with substance dependence;
• Processes or accommodation, and return to work/remain at work planning;
• If applicable, statement of under what circumstances substance testing will be conducted, as well as the criteria for testing and interpretations of test results; and
• Provision for a hierarchy of disciplinary actions.
“Employers can set organizational policies about the physical presence of cannabis products in the workplace,” says CCOHS. “For example, while it may be legal to carry small amounts of recreational cannabis in public, the employer can determine if its presence is permitted at the workplace (similar to allowing alcohol on the premises) regardless of intent of consumption.
To accommodate employees needing to use cannabis for therapeutic measure, a company should consider where to allow that employee to use it on-site (e.g. reduce the risk of second-hand or passive smoke):
• Create a specific and designated area away from entrances, and away from ventilation intake vents;
• Establish a separate area from cigarette smoking, if required;
• Work with employee and his/her physician if the use of alternate forms of cannabis other than smoking would be appropriate (e.g. pills); and
• Consult the jurisdiction or local municipal by-laws (e.g. smoking by-laws) to determine if there are any changes due to legalization of cannabis and take steps accordingly.
Address Safety Sensitive Positions
Using job safety analysis is one method to identify the risk associated with each job position and how that job may be affected by a risk of impairment. “When determining if a position is safety sensitive, one should consider the context of the industry, the particular workplace, and the employee’s direct involvement in a high-risk operation or in high-risk decision-making,” cautions CCOHS.
The four steps to conduct a job safety assessment:
• Select the job to be analyzed;
• Break the job down into a sequence of steps;
• Identify potential hazards; and
• Determine preventive measures to overcome these hazards.
Recognize Impairment
It’s up to the employer to develop a clear statement of what that company considers to be impairment within their workplace. The Canadian Human Rights Commission uses these following characteristics “as they relate to changes in an employee’s attendance, performance or behaviour:
• Personality changes or erratic behaviour (e.g. increased interpersonal conflicts, over-reaction to criticism);
• Appearance of impairment at work (e.g. odour of alcohol or drugs, glassy or red eyes, unsteady gait, slurring, poor coordination);
• Working in an unsafe manner or involvement in an accident;
• Failing a drug or alcohol test; and
• Consistent lateness, absenteeism, or reduced productivity or quality of work.
“Supervisors and employers must enforce policies and programs in a fair and equitable manner,” says CCOHS. “Supervisors should be educated and trained how to recognize impairment, in most cases, when assessing an individual for impairment, it is suggested that a second trained person be present to facilitate an unbiased assessment.”
Respond to Impairment
“Employers and supervisors should be able to identify signs of impairment, and know how to respond to situations involving the use of a substance whether it is from recreational use, dependence, or therapeutic use,” reports CCOHS. “If a supervisor or co-worker becomes aware of an employee who is showing signs of impairment (regardless of cause), it is imperative that actions be taken.”
• Speak to the employee in a private area to discuss their behaviour.
• If the person is in crisis and needs immediate assistance, go to the Emergency Department or call 9-1-1.
• Ask another supervisor or designated person to be present as a witness.
• Remove any stigma regarding substance use. State the concern is about safety for others and themselves.
• State your concerns to employee and request they explain what is going on.
• Based on employee response, discuss options, where applicable and available.
• Follow the steps outlined in organization’s program. In some cases, it may be necessary to assign non-safety sensitive work or to ask the employee to stop their work.
• If applicable notify senior management and/or union representative.
• Provide information on company Employee Assistance Program (EAP), if one is available. Encourage access and use, and reassure the employee the services are voluntary and confidential.
• If necessary, have employee escorted home; do not allow them to drive if you suspect impairment.
• If disciplinary action is required, follow company policies on progressive discipline.
“Every discussion should be accompanied by an incident report,” cautions CCOHS. “The report should include the events preceding the incident, identification of the employee’s unsafe work practices, the matters discussed with the employee, that management and union representatives were notified [if applicable], a list of all actions taken, and any recommendations made to the employee.”
The discussions may need to take place more than once and it is crucial to document all discussions. “Provide empathy, not sympathy,” cautions the H.R. experts. “It’s always wise to focus on solutions, but if disciplinary action is necessary, it is important to follow through.”
Employee Obligations
“Employees have a duty to perform their jobs safely. This duty includes the need to understand their job and the impact that using substances (medical/therapeutic or non-medical) could have on their safety and the safety of others. Employees have a duty to work safely, and to follow prescribed health and safety legislation and the employer’s policies and programs.” Workplace Strategies: Risk of Impairment from Cannabis, published by Canadian Centre for Occupational Health and Safety (June 2017).
Employees need to alert their employers when they require a medication that could cause impairment, including over-the-counter treatments or prescription drugs (including cannabis when used for therapeutic purposes). While the diagnosis does not need to be publicly stated, the worker needs to:
• Provide relevant documentation to employer;
• Follow any medical directions that relates to taking the medication; and
• Follow all precautions regarding impairment.
It is also the responsibility of the employee to be aware of the company’s policies and procedures including:
• Be aware and trained on their role and responsibilities regarding their organization’s policies;
• Be aware of what current resources and supports are available for that individual and their family;
• Be aware of any implications of discipline if there are contraventions of the organization’s policies;
• Be educated and trained on substance use, including information about substance dependence and the impact on safety, health, personal life, and work performance; and
• If trained to do so, be able to recognize the signs and symptoms of impairment in others, and report concerns to their supervisor or employer.
How Will this Affect Worker Rights and Workplace Safety?
Bottom line: Employers appear to be sticking to their drug testing + personal conduct policies
1. Can my employer test me for pot?
Yes, it will still be illegal to come to work high. You can be subjected to drug testing. And you can still be fired – or not hired – for failing a drug test even if you’re not the least bit impaired at work. The draft legislation includes phrases giving the authority to employers to “enact and enforce workplace policies restricting the consumption of marijuana by employees.”
2. What about workplace safety?
Advocates for the legalization of pot claim it was never their intention to compromise safety. In the U.S. a 2013 survey conducted by HireRight (a human resource screening company) found 78 per cent of employers conducted drug tests either randomly (as a condition for employment) or whenever accidents occurred on the jobsite. Quest Diagnostics (a laboratory specializing in drug testing for employers) reports in 2015 it “performed nearly 11 million tests and nearly half of all positive tests showed evidence of marijuana use.”
3. Can I get fired even if I’m not high?
Experts claim that THC can stay in a person’s system for days or even weeks. The government has promised an accurate testing method, like the Breathalyzer used by the R.C.M.P. for testing alcohol consumption, to test for pot impaired drivers. Employers would probably be interested in purchasing the equipment.
4. Will employers have rights under the legislation?
According to Canadian HR experts, companies are reviewing their current policies, sending their managers on training programs, and establishing clear rules for employees to follow. In the U.S. where recreational marijuana has been legalized, companies which have a drug-free workplace policy, have been challenged by young professionals who have more liberal attitudes towards pot.
“Employers who have a zero-tolerance policy have been cautioned in applying it to non-safety workers, because if they do testing on them, they run the risk of inviting an invasion of privacy claim,” reports a Boston-area law firm, specializing in labour and employment issues.
5. What about employees using medical marijuana?
In the U.S. there have been several cases involving employees with permits to use medical pot and most have been decided in the employees’ favour. As more employees use pot to manage pain and disabling symptoms, some American companies have begun to weigh accommodations for workers with permission to use pot for an existing health condition
Steps to Create a Safe Workplace
The following are the steps every employer needs to follow to ensure a hazard-free workplace:
• Address potential impairment from cannabis as part of the overall workplace risk assessment process.
• Identify safety sensitive positions.
• Identify appropriate controls and measures to maintain safe operations.
• Identify what action(s) will be taken if there is suspected or identified impairment or substance use.
• Identify what accommodation practices will be implemented where necessary (including for medical/therapeutic needs and substance dependence).
• Test employees for substances where the levels of impairment can be defined (e.g. alcohol and not typically cannabis).
• Train supervisors on policies, programs, how to recognize impairment in others, and what assistance measures are available.
• Define what accommodation will be available in cases of medical/therapeutic need, or disability (including disability from substance dependence).
• Accommodations plans should be based on medical assessment and developed collaboratively between employer and employee.
• Create a supportive workplace can reduce the stigma associated with substance use and even reduce the need for substances in general.
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