Employers need to educate themselves on impairment and liability issues
by: Roper Greyell
As recreational marijuana fast
approaches legal status in Canada, the landscape for medical
marijuana—which has been lawful since 2001—looks to morph once again.
Drew Demerse, a partner at
Vancouver-based law firm Roper Greyell, said the first issue that comes
to mind is how people will obtain pot post-legalization next spring.
Demerse, who advises employers on workplace legal matters such as
labour, disabilities and human rights, said there should be a
substantial drop in medical marijuana prescriptions from doctors to
start, simply because obtaining it legally will be much easier.
“The types of things that I see
people getting prescribed medical marijuana for right now vary widely,”
said Demerse. “For example, I had a client who had an employee who had
been prescribed marijuana to treat insomnia, but the medical experts
tell me marijuana is not an appropriate treatment for insomnia.”
Demerse said first off, employers
who think they may have issues with medical marijuana in the workplace
should consult a lawyer, and look into updating workplace policies
around drug use immediately. According to Health Canada, marijuana is
the most commonly used illicit substance in Canada and the second most
used recreational drug in Canada after alcohol. Currently, more than
50,000 Canadians use medical marijuana, with Health Canada estimating
that by 2024 more than 500,000 Canadians will be users. Demerse, who was
first called to the bar in 2006 in British Columbia after graduating
from Dalhousie Law School, said that human rights legislation requires
employers to accommodate employees’ disabilities. If marijuana is a
necessary treatment for that disability, Demerse said the employee’s
right to medicate with marijuana must be respected, to a specific
extent.
“If you’re able to separate it
from your workplace, you don’t present a safety risk, and your work
doesn’t suffer from it,” he added, “then the employer has no business
regulating it. The issue is really about accommodating necessary—and I
emphasize the word necessary—treatments for those disabilities. So a
prescription for medical marijuana does not entitle the employee to be
impaired at work or compromise his or her safety, or the safety of
others.”
Both recreational and medical
marijuana are presenting a unique challenge for the legal system. The
potency of pot can vary widely, as can its effect on users. The effects
of smoking marijuana can last anywhere from two to twenty-four or more
hours, and there are no current testing methods that can prove current
impairment on the spot. THC (Tetrahydrocannabinol), the psychoactive
element within cannabis, is fat-soluble and can be released days after
consumption during exercise.
Tom Yearwood, the owner of the
Surrey-based Denning Health Group, has been involved in drug and alcohol
testing for more than 20 years in B.C. and across the country.
Denning’s clients include some of the province’s leading forestry
companies, and Yearwood said the legal status of recreational marijuana
doesn’t change anything regarding impairment or liability issues within
the workplace.
“There is quite a bit of
discussion and confusion when it comes to testing for marijuana,” he
added. “And while there is a push on at the federal level to establish a
per se limit, meaning a specific cut-off level at which impairment is
presumed, this is not the case at present, and a positive drug test does
not necessarily correlate to impairment.”
Yearwood said there are four ways
to test for marijuana—urine, blood, hair or saliva. He added the most
commonly used form right now for employers is the urine test. However,
it’s important to remember that marijuana is not alcohol, and can stay
in the body for weeks.
“This is one of the reasons that a
positive drug test for marijuana, or other drugs, cannot be considered
as a standalone indication of impairment,” he added.
Demerse said it all comes down to one thing for both employees and employers.
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