September 24, 2018
While employers may have already provided workplace accommodation for employees who have been prescribed medicinal marijuana which contains CBD (and have a recognized disability), employers will need to determine whether to change or implement policies that address their employees’ use of recreational marijuana containing THC that is also used to treat health issues. If an employee without a prescription uses cannabis that contains THC a certain amount of time before or during work hours, such employee may be found to have consumed a prohibited substance in contravention of a workplace prohibited substance policy. It remains to be seen whether employers will allocate cannabis into the category of traditional substances that are prohibited from being consumed at work. They will also need to contemplate how to accommodate cannabis users based on their health-based needs, and their method of consumption of cannabis (i.e. smoke, vape, edibles).
Another issue employers will have to contend with is how to identify and permissibly test for impaired workers in a way that is permissible and does not violate privacy rights of employees. There is a fine line between substance testing to ensure workplace safety in a non-arbitrary way and improper invasion of an employee’s privacy rights. Given the varying impact of THC on an individual user of cannabis, it may be difficult to use testing to accurately determine the employee’s level of impairment. The mere lingering presence of THC in an employee’s blood stream who may have consumed THC marijuana the night before work does not necessarily confirm an employee’s impairment and inability to safely perform their job. In addition to uncertainty about the effectiveness of cannabis testing impairment devices, employers may struggle with training and relying on management to accurately identify the indicators that an employee may be showing signs of impairment as a result of cannabis use. The motivations for making these assessments may not be as objective as is desirable, especially if an evaluator of an employee’s conduct possesses pre-determined views on the ethics of cannabis use. If management cannot confidently ensure a reasonable basis for administering testing, an employee could argue they are being improperly and randomly subjected to testing that is not warranted and is in violation of their privacy rights.
One organization that has publicly identified its policies on cannabis use by its employees is the Canadian Forces. All members of the military will be required to abstain from consuming cannabis within eight hours prior to the start of their work shift. Those members who are responsible for operating artillery of any kind are prohibited from consuming cannabis for at least 24 hours prior to use, while soldiers who operate vehicles or vessels are prohibited from consuming cannabis for no less than a month before they engage in active duty. The Canadian Forces asserted that, unlike alcohol, cannabis can remain in the body’s blood stream for longer periods of time which led to its concerns that the intoxicating release could happen at a subsequent time after the solider returns to active duty. While the Canadian Forces example is only one sector, employers will need to be mindful of the different operational issues that their employees encounter when determining how to structure a cannabis policy.
As the manner, type and amount of cannabis consumed will vary based on each individual’s use of cannabis, it is hard to say whether a one-size fits all cannabis policy is appropriate for each workplace. It is foreseeable that employers will face push back from employees, or their unions, about the rigidity of their cannabis policies. Furthermore, the potential suspicion by managers of impaired employees could lead to workplace tension, especially if an employee believes they were arbitrary tested without a reasonable basis for doing so. A dispute about the randomness or fairness of testing may cause a negative impact on the workplace environment, which could in disputes between employers and employees that cannot be easily resolved in-house.
This space will be used to provide commentary on all areas where cannabis-related disputes may arise.
The Law Times recently published a featured article on how alternative dispute resolution can be a practical solution to cannabis disputes