When an employee has been drinking and is intoxicated, the signs are usually clear: stumbling, slurring words, emotional outbursts. But what about when your employees are impaired by marijuana on the job? Will you be able to tell, and what will you do? With recreational cannabis use set to come into effect this year, our employment lawyers are offering insight and tips to help employers prepare.
The rules around impairment and use of intoxicating substances in the workplace will be the same
The good news for employers is that even though recreational cannabis use will be legalized, you’re still entitled to prohibit staff from coming to work intoxicated or using at work, in accordance with current workplace rules for use of alcohol and other drugs.
Another way it’s the same is if an employee appears to be addicted, you must, under the Human Rights Code, try to help a staff member address their addiction and return to work, though we don’t anticipate seeing as many cases of marijuana addiction.
The hard part—and there are many in this first of legalizing recreational cannabis use—is in defining and enforcing marijuana impairment in the workplace.
How marijuana in the workplace is different from other substances, and why employers are worried
Even though the changes won’t take effect for several months, our employment lawyers are already hearing from business owners and human resources teams who have concerns about identifying and handling possible intoxication cases and the accompanying productivity and safety issues, about which there are no guidelines, resources or support for employers—yet.
For employers, particularly those outside safety-sensitive industries, which already enforce drug regulations, here are some of the key concerns:
- Determining marijuana impairment is difficult. With alcohol, signs of intoxication are clear and there’s a legal definition of intoxication that’s commonly understood and identified. Not so for marijuana in the workplace.
Research suggests saliva tests that detect the presence of THC (marijuana’s active ingredient) for 24 to 48 hours or more after consumption, and don’t indicate being impaired.
A recent University of Calgary study also suggests it’s “possible to have THC levels within a non-smoker from just being exposed to smoke in a closed area”—meaning ‘second-hand smoke’ could lead to a staff member inadvertently testing positive (or medalling in snowboarding at the Olympics).
- Employers can permit recreational cannabis use on site. If it’s legal on the street, it could be legal on company property, and we’ve even read about creative industries that are open to letting designers, for example, become high if it helps them produce superior creative work.
- There are different types of marijuana, and different highs. What could impact an employee who is a recreational user one way one day could affect them in a different way another day, so how do employers define or enforce a standard that says, ‘You can only be this kind of high’?
The smart way for employers to navigate marijuana in the workplace
With such a lack of direction for employers, our employment lawyers recommend clear policies and communication as well as education about marijuana intoxication in the workplace.
1) Create a strong, clear policy
Having a clear and reasonable policy that prohibits impairment at work, lets your team know what’s expected of them, and gives you the right to do an assessment and send home anyone who appears impaired at work.
Spell out the consequences, which should range from discipline like being sent home to termination if serious, ongoing safety issues arise, and then follow them so staff take your expectations seriously and understand how the rules will be applied.
If employers know the indicators of marijuana impairment (and we recommend educating supervisors and managers on this), and a staff member appears stoned at work, employers are within rights to send the person home.
2) Take detailed, anecdotal records
When marijuana impairment incidents arise, record all the anecdotal information you can to help prove why you made your decisions. Instead of writing down just that a staff member replied, ‘No’ to your question about being high, write down things like how long it took them to respond, the gestures and expressions they used, etc. to paint a better picture of what you saw.
How Gillespie makes a difference
Not knowing how the new legislation will impact the workplace has many employers concerned about how to proactively maintain a positive, safe and healthy workplace.
Our lead human rights and employment lawyer, Hugh MacInnes, has extensive experience helping employers navigate drug testing and drug testing policies with local and national firms.
Ensure your workplace policies are sound with Gillespie and Company’s expertise and guidance! Contact us today. 250-374-4463.