November 29, 2018

Ready or not, legalized cannabis is here. While there’s no shortage of news reports detailing the countless new government regulations that have been passed and the potential wide-ranging impacts of legalization on everything from impaired driving to the stock market, there’s little practical advice available for employers and unions seeking to maintain workplace safety and productivity in an era where cannabis can be purchased and consumed as easily as alcohol and tobacco.

In this session, our experts will help you put theory into practice, discussing the signs and symptoms of impairment, how to successfully implement fitness for duty policies, the hallmarks of safety-sensitive positions, and the impact of such a finding on the ability to administer drug tests. Issues to be addressed include:

  • Assessing impairment: Given the lack of scientific consensus on the threshold level of THC (tetrahydrocannabinol) that will cause impairment, and the different effects that the substance has on each individual, how do you define “impairment?” What signs or symptoms might indicate cannabis impairment? Are there any observable behaviours that supervisors and coworkers should look for if they suspect that a worker is impaired by cannabis? How, if at all, does impairment from cannabis differ from impairment by other causes such as fatigue, alcohol, prescription medications or other substances? How should employers and unions respond when they suspect that an employee is exhibiting signs of impairment?
  • Fitness for duty policies: Should employers consider adopting a general fitness for duty standard that could also address impairment effects from fatigue, alcohol, prescription drugs, etc., or is it easier to administer a bright-line policy requiring that an employee abstain from consuming cannabis either completely or for a specified time period before reporting for work? To what extent will arbitrators and courts uphold policies restricting cannabis consumption during off-duty hours? Are they likely to uphold policies that require complete abstinence from cannabis use during off-duty hours, or for prolonged periods before an employee has to report to work?
  • Implementing workplace policies: What training must be provided to employees to ensure that they understand the fitness for duty policy and can reasonably assess whether they are fit for work? What about training for supervisors or front-line managers who will be responsible for enforcing the policy? Should training for employees and/or managers include education on impairing substances? Are there concerns that a policy that relies on subjective impressions of impairment could be vulnerable to challenge for being selectively applied based on favouritism or discriminatory grounds? What measures can employers put in place to guard against such concerns? What are some examples of appropriate responses if an employee reports that he or she is not fit for duty, bearing in mind that an overly onerous disciplinary response will discourage self-disclosure?
  • Safety-sensitive positions: What is the significance of a finding that a workplace or position is a safety-sensitive one? How have arbitrators and courts defined safety-sensitive positions? Can a position be safety-sensitive if an employee only occasionally performs such duties? Are there any types of drug tests that can be administered to employees who do not perform safety-sensitive work? What additional tests can an employer administer when the position or workplace is deemed to be safety-sensitive? (i.e. pre-employment, random, etc.)