Weed at Work

The legalization of recreational marijuana in Canada came closer to reality on April 13, when the Justin Trudeau government introduced the Cannabis Act, or Bill C-45. While pot users across the country applaud the move, others have raised concerns about the effect that the proposed legislation would have on workplace safety. 

Jeff Cottrill

On Christmas Eve of 2009, four Toronto construction workers were killed and another was critically injured after a scaffold collapsed, sending the workers falling 13 storeys. Last year, the manager of Metron Construction was sentenced to prison for criminal negligence, ostensibly because the victims had not been using fall-protection gear. But a lesser-known fact about the incident is that three of the workers who died — including the foreman, who allegedly allowed all the others to work on the scaffold without proper protective equipment — were under the influence of marijuana at the time.

Now, recreational cannabis use is set to become legal by July 1, 2018, pending the passing of Bill C-45. Marijuana sees a wider social acceptance today, and many researchers agree that pot is no more harmful and less addictive than alcohol and nicotine, which have almost always been legal.

Yet the Liberal government’s bill, which would allow possession of up to 30 grams of marijuana for recreational purposes for Canadians aged 18 and older, is silent on the issue of intoxication at work — particularly regarding safety-sensitive jobs. A question-and-answer page on Health Canada’s website notes that “impairment in the workplace is not a new issue and is not limited to cannabis.

” The page adds that federal, provincial and territorial labour ministries are having an “ongoing dialogue” on cannabis and workplace safety, but leaves it at that.

Josh Bueckert, a senior media-relations spokesperson with Employment and Social Development Canada in Ottawa, says the most direct and immediate effect of the Cannabis Act for employers would be through the changes it proposes to the Non-Smokers’ Health Act. The law, if passed, will clarify for employers “that although cannabis will be legal, smoking and vaping of cannabis will be prohibited in federally regulated places and conveyances.”

Adam Pennell, an employment lawyer and an associate with Toronto law firm Borden Ladner Gervais LLP, notes that the way that the Act is structured now serves merely as a framework.

Regarding occupational safety issues, one should expect to see “a range of either federal regulations and/or the provincial and territorial legislation that is going to essentially fill in the gaps of what exists” until the legalization date next year. Until then, Pennell says, “the existing status quo is the same.”

Reefer madness
The effects of marijuana, like those of alcohol and opioids, can impair a worker’s judgement. Pot and opioids “have what we call ‘psychotropic effects’, because they act on the central nervous system, the brain and the cerebellums,” explains Dr. Andrea Furlan, a scientist and physician with the Institute for Work & Health (IWH) in Toronto.

While the intoxication effects of alcohol have been studied for decades, relatively little research has been done on how to measure the effects of cannabis in proportion to dosage and a user’s tolerance.

“This is a very new field,” Dr. Furlan says. “We don’t have a lot of well-conducted studies.”

One recent study by the National Academies of Sciences, Engineering, and Medicine in Washington, D.C., The Health Effects of Cannabis and Cannabinoids, includes a chapter examining the association between marijuana and injury or death. While the researchers conclude that cannabis impairment increases the chances of a motor-vehicle accident, they are less certain about whether it has a significant effect on overall workplace safety. “There is insufficient evidence to support or refute a statistical association between general, non-medical cannabis use and occupational accidents,” the study authors conclude.

This lack of certainty could become troubling when one considers marijuana use by a worker in a safety-sensitive position, which the Canadian Human Rights Commission defines as any job in which intoxication could result in significant safety risk for workers, the public or the environment.

This interpretation theoretically covers a broad number of industries and jobs, including construction, operating motor vehicles, healthcare, operation of heavy equipment, law enforcement and any task requiring a high level of cognitive function.

Despite the potential workplace-safety consequences, Dr. Furlan does not believe that legalizing recreational marijuana will have a significant impact on the current work situation. “There is already a lot of use of illegal marijuana in many industries,” she says. “So it is already happening.”

The main difference is that legalization will normalize the use of cannabis and encourage people to be more open about it, because law enforcement will not penalize them. But as with alcohol, which is legal, “we all know it is not safe to drive, it is not safe to operate machinery” under the influence of marijuana.

That said, Dr. Furlan does not rule out the possibility that medical marijuana could boost safety under certain circumstances. She cites studies that have shown that opioids prescribed as pain relievers can improve driving ability in some users. “They drive really bad because the pain is a distracter,” she says, but taking medication to alleviate the pain can make a big difference. “If a worker is getting medical marijuana for prescription, and it is treating a condition, it may be better for them to use than not to use.”

More research is needed before any firm conclusions can be drawn. This year, Dr. Furlan and fellow IWH researcher Nancy Carnide received a grant from WorkSafeBC to conduct a review of the literature on the use of opioids, cannabis and other drugs in relation to workplace safety.

“We just started the review; we haven’t seen the studies yet,” Dr. Furlan says.

Stoned out
One industry that has expressed deep concern over the safety implications of pot legalization is the oil and gas sector. Enform, the country’s safety association for the upstream oil and gas industry, has been lobbying for regulation prohibiting recreational marijuana use for workers in proximity to the work environment.

Last August, Enform president and chief executive officer Cameron MacGillivray wrote an open letter to the Cannabis Legalization and Regulation Secretariat, stressing the inherent occupational safety risks and requesting clearer legislation regarding workplaces. Upon the introduction of Bill C-45, the organization released a statement calling for a prohibition of use, storage or sale of marijuana in or near workplaces, at least until a standard test to detect pot impairment with legal limits is established. “We are looking for some guidance from the governments and the regulators,” MacGillivray says from Calgary. “Marijuana poses problems that we don’t face with alcohol and impairment.”

He adds that the oil and gas sector is loaded with safety-sensitive work environments, including gas plants, pipelines, oil facilities and drilling operations. “If a worker is not competent in certain procedures and practices are not followed, which are safety-oriented, we could have a catastrophe.”

An impaired worker using hazardous materials may cause an explosion, for example, which would endanger not only the workers, but the surrounding community too. “That is a great concern of the industry.”

It is especially confusing for employers to understand their obligations when the research into the effects of cannabis has been minimal to date. “Unlike alcohol, the longer- term effects of marijuana are less certain,” MacGillivray notes. What is known at present is that “somebody who is using marijuana recreationally the day before can still be impaired when he or she shows up for work and may not realize it. And for chronic users, that can go on for many days and perhaps weeks.”

Oil and gas companies also fear that the costs of safety enforcement will skyrocket with the legalization of recreational marijuana. A Canadian Press story from May 1 suggested that employers may have to foot higher bills for drug testing, drug counselling or treatment for workers and lost work hours when employees are sent home for being impaired. It has reportedly been a problem for Precision Drilling’s operations in Colorado, where legalized pot has made it harder to recruit young workers who are sober.

Enform’s position is that oil firms should instill an absolute ban on marijuana until an accurate, reliable testing method can be devised. MacGillivray claims that medical practitioners have made similar recommendations. Until a proper test is discovered, “you want to be able to prohibit workers who have marijuana in their system from safety-sensitive work,” he says.

Getting testy
For some, the obvious way to enforce fitness for duty among employees is to conduct random drug testing, but this is tricky in itself. Unlike a simple breathalyzer test, which yields precise results for alcohol impairment, there is no exact, definitive way to determine a person’s level of impairment when it comes to marijuana. And it is not clear whether the testing methods currently available — usually through urine samples or saliva tests with mouth swabs — would even work properly.

“The problem is, by randomly testing someone, there are a lot of false positives and false negatives,” Dr. Furlan says. False positives may occur in urine tests, for example, because marijuana can take a long time to be metabolized out of a user’s system. “Sometimes, it takes even five days to be cleaned completely,” she notes. “So if someone went to a party on Saturday, and on Monday morning, they show up to work, it is clear that they are not impaired anymore, but the urine will test positive.”

There is also the question of whether testing employees infringes on their privacy rights. “Personal testing is very invasive, and it has been treated as such by courts and arbitrators,” Pennell cautions.

Yet employers have to balance workers’ privacy with their duty to take every reasonable precaution to protect them. “In each case, it is going to be a case assessment, based on what the facts are.”

Bueckert points out that the Canada Labour Code contains no specific provisions about drug testing. “Workplace alcohol and drug testing is currently governed by a body of decisions from labour arbitrators, human-rights tribunals and courts, which seek to balance individual rights while ensuring workplace safety,” he writes. But at the same time, employers are required by law to establish workplace policies that address all potential safety hazards, including drug or alcohol impairment.

“In general, employers are responsible for demonstrating that alcohol and drug testing is necessary for workplace safety,” Bueckert says. “There are also privacy-rights considerations related to alcohol and drug testing, and in unionized environments, terms and conditions of collective agreements must be respected.”

Toronto employment and labour law firm Stringer LLP gave a presentation about the legal implications of random testing at the Partners in Prevention conference in Mississauga, Ontario on May 3. “Historically, random alcohol and marijuana testing has been prohibited in almost every jurisdiction in Canada,” says lawyer and Stringer partner Jeremy Schwartz, noting that limited exceptions have occurred in “very specific situations with very safety-sensitive workplaces where there has been a history of issues.”

Schwartz cites the 2013 Supreme Court case involving Irving Pulp & Paper, a Saint John, New Brunswick company that initiated a random-testing policy. “They found that the invasion of privacy outweighed the ‘uncertain to minimal’ — this is their words — safety benefits gained through random testing,” he says of the court’s perspective. “The fact that you have a safety-sensitive workplace full-stop is not enough; you have to have evidence of a problem.”

But in Schwartz’ view, the Supreme Court failed to clarify what a “problem” with workplace impairment is. As a counsel to employers, he finds it difficult to understand how privacy rights can trump safety benefits at a pulp and paper mill, a workplace with myriad safety hazards ranging from dangerous equipment to toxic chemicals.

“There are some very serious public and internal consequences through any kind of accident in a pulp and paper mill,” he says, citing an explosion or toxic exposure as examples. In this case, he believes, testing “could actually provide real safety.”

MacGillivray points out that random testing of employees is not the only possible approach to drug testing. “There is also post-incident testing,” he explains, “and then there is also reasonable suspicion that somebody is impaired, where you can call for testing.” Some safety-sensitive workplaces have policies that call for workers to take pre-employment or pre-access tests, “and then you have to re-establish your test on some basis, perhaps once a year.”

But Enform has supported efforts to instill random drug and alcohol testing in the oil and gas industry. “The courts have a fairly high standard for those applications of random testing,” says MacGillivray, adding that courts typically expect employers to prove “that there has been a practice of abuse, or a problem with abuse of drugs or substances in the workplace, before they support random drug testing.”

A hazy area
While employers cannot be sure how the Cannabis Act will affect safety-sensitive workplaces at this point, Pennell suggests it might be worthwhile to take cues from current practices with substances that are already legal, particularly alcohol or nicotine.

“I don’t want to speculate too much, but when it does come into force, you are going to face likely the same challenges you face with alcohol,” Pennell says. “A key point is that you can’t freely use it in your workplace once it comes into force; same with alcohol. And employers can demand — and frankly, they should expect — that you are going to report to work fit for duty. So you are not going to be impaired, you are not allowed to be impaired, there is no ‘right’ to impairment.”

How can fitness for duty be enforced without stepping on workers’ privacy? “That one is the million-dollar question,” Pennell says. “I think I’d be a rich man if I knew exactly what to do.” He predicts that employers will be scrambling over the next year to develop clearer policies that recognize employees’ rights to privacy, but also take safety into account.

“And you have to apply it consistently,” he advises. “If you have a zero-tolerance policy and it is not applied uniformly, an adjudicator is going to pick up on that, whether it is a labour arbitrator or a court.”

But workplaces will still be able to discipline workers whose recreational marijuana use results in contraventions of safety and performance policies. Pennell warns employers that once Bill C-45 goes into effect, “they are just going to have to interact with it more. So at this stage, the biggest challenge will just be making sure that policies reflect that.”

One of MacGillivray’s goals is to get provincial governments to work together, along with the feds, to harmonize their legislation and regulations about marijuana in the workplace. It would also help to clarify the issues for the oil and gas industry, among other sectors, if leaders can approach regulation about employer obligations with some common themes, pointing out that there is an opportunity for government agencies to provide some clear guidelines for industry on acceptable practices and determination for things like safety-sensitive positions.

“It is challenging for the industry,” MacGillivray says.

Prepare for Pot

Just how well prepared are Canadian employers when it comes to dealing with marijuana impairment in the workplace, with the passing of Bill C-45 on the horizon? Not very, according to a recent report by Toronto law firm Fasken Martineau. The firm conducts an annual survey of employers nationwide on occupational health and safety issues, and the 2017 version surveyed members of 358 businesses on several issues, including drug impairment. “Alcohol and drugs, especially drugs in the workplace, have caused some of the worst disasters and loss of life in Ontario, and across Canada and around the world, and it is still kind of ignored,” firm partner and report author Norm Keith said at a press conference in Toronto on April 20. According to Keith’s report, The Good, the Bad and the Troubling, 53 per cent of survey respondents suspected that another worker had been under the influence of alcohol or non-prescription drugs, and almost one quarter of respondents knew with 100 per cent certainty of one or more workers who had been under the influence of alcohol or non-prescription drugs while on the job over the previous 12 months. As well, 60 per cent of respondents had managers or supervisors who had not been trained to identify intoxicated workers. “Seventy-nine per cent of respondents said they don’t have a drug or alcohol policy. None. Zero. Nada,” Keith says. While some of those workplaces might be lower-risk environments without safety-sensitive positions, making the lack of policy less of an issue, “it’s not not an issue,” he stresses. “Most employers don’t want to use those policies to find out if people are doing drugs or alcohol and fire them. They want them not to do it.” Among the inherent dilemmas is whether to fire or accommodate an addicted employee. Keith was involved in a recent Supreme Court of Canada case in which a coal-mine worker in Alberta tested positive for both marijuana and cocaine following a workplace incident, which did not result in an injury or fatality. The worker had snorted cocaine at a party and then smoked marijuana to bring down the high from the coke before his work shift. But a psychologist diagnosed the worker with an addiction to cocaine, making him technically disabled. “My sense was that the Supreme Court was pretty open to the employer’s perspective on that,” says Keith, referring to the perceived obligation that one must accommodate employees who proactively declare their addiction. “If they don’t, and they break the rules,” he says, “you may be able to terminate their employment.