With marijuana’s legalization approaching, HR’s reviews of company policies should be in full swing, and plans should be underway for keeping your organization safe from impaired workers.
Michael Horvat, a labour and employment law
yer at Aird & Berlis, spoke to HRD about how employers can prepare, what the rules on drug testing might look like, and what policies need a fresh look.
How are employers preparing right now?
There’s a desire to get additional information as to how they can specifically address legalized marijuana in the context of their current policies and what they need to change or add in order to address this issue.
Most employers are just searching for information, particularly for what they can and can’t do as far as testing, and how this fits in with other issues relating to employees who are taking substances that affect their ability to perform at work, and how they’re going to balance out people who have actual addiction issues to those who are going to treat pot the same way you treat alcohol, which is “I take it on the weekend but I’m ready to go on Monday morning, and you can’t dictate to me what I do on my own time”.
Do you expect the law around drug or impairment testing to change?
I don’t think there’s going to be any change in the law. The Canadian model is still going to be in place, which is that it’s particularly restrictive in pre-employment testing; it’s going to be fairly restrictive for individuals who are not in safety-sensitive positions.
But, as we’ve seen in the TTC (Toronto Transit Commission) decision, for those employees in safety-sensitive positions ... I think you’re going to get more deference to testing – and in particular, more emphasis on the obligation of the employee to disclose. The adjudicative bodies may not be as readily disposed to giving individuals a free strike, as it were.
Should employers treat legalized marijuana like alcohol, or like controlled drugs – such as codeine?
It’s in this in-between zone of not being like codeine or another prescription drug which is, in most cases, going to be time-restrictive and curative, as opposed to, right now, the accepted use of marijuana as almost being a supplementary painkiller or appetite supplement, that is ongoing.
Now we’re going to get into the situation where it’s more similar to alcohol, particularly if the Ontario government rolls it out in stores similar to the LCBO, people are going to view it as being an alcohol-like substance – which is probably closer to the truth. That puts employers in a better position to say “we can handle that, because we’ve long handled legalized alcohol on the basis that you can’t have it at work, you can’t consume it at work, you can’t attend while impaired, and if you’ve got an addiction to alcohol, you have to disclose it to us so that we can understand and help you and accommodate that requirement”.
What’s the best way for employers to prepare for the law change? What should they look at or amend?
The first change that they’re going to have to make is that the prohibition on marijuana, in most policies, has been on the basis that it’s an illegal drug. It’s a bit of a shortcut that needs now to be expanded upon, because clearly that cannot be the sole reason for any policy decisions as to discipline, termination or accommodation, depending on the circumstances. You’re going to have to take a more robust review of your policy to address, basically, three issues:
- Marijuana as a recreational drug, similar to alcohol
- Marijuana as a quasi-medical use
- Marijuana as an addictive drug that is subject to human rights issues.
Your policy now has to broaden to help give guidance to your HR, and to say “when it lands in your lap, these are the roads that you can go down”.
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