Uncertainty around exactly how to regulate cannabis impairment in work environments remains a top issue with Canadian employers.

While a solid date has yet to be set for the legalization of cannabis in Canada, it’s happening. And it’s happening soon. However, there is still a lot of uncertainty around exactly how employers will deal with the legalization. Particularly when it comes to impairment in the workplace.

Anita Huberman, Chief Executive Officer of the Surrey Board of Trade, says that employers in both safety-concerned work environments like construction, and less safety-concerned environments like offices, have been trying to prepare themselves in ways to regulate impairment issues.  

“Employers are both concerned on what legalization will mean to the workforce and the business community,” says Huberman. “What are the employer’s rights and obligations?”

The Surrey Board of Trade has had several consultations at both the federal and provincial levels on the topic of cannabis legalization, and Huberman says that what’s been missing from any recommendations listed by both levels of government is exactly how employers should deal with cannabis impairment.  

Each workplace will be expected to make it clear to employees what will be tolerated and what will not. Communication and education about cannabis use will need to be ongoing and face-to-face, says Huberman.

“This is a very transitional moment in Canadian history that hasn’t happened since we legalized alcohol,” says Huberman.

“It, therefore, requires careful consideration in the workforce about communication and human recourse policies, and productivity in the workplace and the community in general.”

Building stronger Human Resources policies

“It comes down to your impairment policy, which has to be evaluated by legal counsel,” says Huberman. “Because first of all, the communication needs to be that any form of impairment in the workplace will not be tolerated for you to do your work.”

Workplaces will need to strengthen their human recourse policies, and build a new framework around impairment.

“There needs to be a mechanism—which is somewhat unclear right now—as to what are the rights of the employee to even let their employer know that they’re taking cannabis for medical purposes? So, for the employer to even ask about it without infringing human rights, and employment standards is such a grey and uncertain area.”

What we do know

In the context of medical marijuana in the workplace, the Canadian government has stated that a prescription for medical marijuana does not entitle an employee to compromise his or her safety, nor the safety of others. A prescription also does not entitle an employee to smoke in the workplace and the same smoke-free laws that apply to regular cigarettes will also apply to cannabis.

A prescription for medical marijuana does not entitle an employee to late arrivals to work or to unexcused absences. But employers are required to try to find suitable workplace accommodation for disabled employees who have cannabis prescriptions. The same accommodation rules will apply that already apply to disabled employees with medical drug prescriptions.

Employers need to assess risk

Part of the uncertainty surrounding workplace regulation is that there has been no concrete testing on how exactly cannabis affects impairment.

When an employer is conducting an accommodation analysis on the medical use of cannabis, they need to have the necessary information to effectively assess risk, says Huberman.

“We have the most number of manufacturers in British Columbia right here in Surrey,” says Huberman. “So, if the majority of workers are operating machinery and they’re using medical cannabis … what is the risk analysis?”

That risk analysis will be completely up to individual employers. Despite the grey area surrounding cannabis’ effects on impairment, an employer needs to create a comprehensive policy categorizing different substances, says Huberman.

This strategy will need to lay out legal non-medical substances that cause impairment like alcohol and cannabis; illegal non-medical substances like cocaine and heroin and recreational cannabis; medical substances that cause impairment used legally such as sleeping pills, opioids and medical cannabis.

How to communicate this to employees is completely up to the employer and their HR strategy.

Potential to collaborate

Impairment at work is not only a safety concern. It does not strictly affect workplaces with heavy machinery and other dangerous environments. Impairment can affect productivity, professionalism, moral and quality.

“I think that’s where there’s a huge opportunity for those types of business that don’t have safety-sensitive types of workplaces to really strengthen their HR policies,” says Huberman.

Non-safety-sensitive work environments may be at even higher risk for impairment issues, says Huberman.

“They’re not expecting [impairment] to happen; they don’t know how to react; there’s no form of communication mechanism. Or even mechanisms for discipline within that substance framework.”

This gives organizations like WorkSafeBC the opportunity to team up with workplaces of all types, not just traditionally safety-sensitive ones. Even though there are still many, many questions left unanswered as legalization approaches, safety organizations and employers joining forces to build regulation guidelines is the best approach, for the time being, says Huberman.

“This is an opportunity for all of us to collaborate. Enhance safety charters … create more education for staff to be aware of people that are impaired.”