Employers Concerns About the Legalization of Cannabis

Following Uruguay, Canada is now the second country in the world to fully decriminalize and legalize marijuana. By nearly a two to one margin, the Canadian Senate approved Bill C-45, also known as the Cannabis Act, on Tuesday 19 July 2018. The law is said to go into full effect on October 17, 2018. When it comes to the impact on employers, they reportedly are feeling very unprepared for the effect it will have on their businesses.

According to a report by The Conference Board of Canada, more than half (close to 52 percent) of Canadian organizations are very concerned about the implications this law will have on their businesses and in the workplace.[1]

Among the rest, 33 percent said that they were only slightly concerned and 15 percent said they are not in the least bit concerned. Among those who aired some concerns, 57 percent of them mention workplace safety; 39 percent indicated work intoxication and impairment; 21 percent talked of increased drug use both inside and out of the workplace; 20 percent indicated the issue of testing for impairment; 15 percent were concerned about managing needs related to accommodation and disclosure; lastly, 15 percent were concerned about the costs, including covering medical marijuana and any other financial effects on the organization.

Bryan Benjamin, Vice President of organizational performance at the Conference Board of Canada said, “Workplace safety is consistently flagged as employers’ top concern with the legalization, but the solution is not one size fits all.”

The highlights from the report are:

  • Employers’ top concerns surrounding the legalization of marijuana included workplace safety and issues of intoxication or impairment, and the increased use of cannabis both in and out of the workplace.
  • Over 52% of Canadian organizations are either concerned or very concerned about the legalization of marijuana as it pertains to the workplace environment.
  • Employers will play a major role and be very instrumental in the formation of legislation and practices around the use of cannabis within the workplace.

The report mentions some practical considerations for employers, including:

  • Determining how strict the organization should be about alcohol and drug testing and potential consequences for any impairment on the job.
  • Provision of relevant resources and support for those struggling with problematic cannabis use as well as addiction and access to confidential treatment.
  • Determining whether or not to allow specified amounts of marijuana consumption during working hours and work-related social events.
  • Educating employees and managers on the different ways to detect and manage problematic use, addiction and dependence, and potential cannabis impairment.

What’s next for employers?

In a survey of 650 Human Resources Professionals Association (HRPA) members, more than 45 percent of employers do not believe that their current workplace policies adequately address potential new issues that may arise due to the recent legalization and expected increase in the use of marijuana.

“Employers are concerned, and both governments and employers now have an integral role to play in order to ensure that workplaces are properly prepared when the legalization of marijuana is fully in action” said Bill Greenhalgh, CEO of HRPA in Toronto. “Governments must ensure that issues such as the legal definition of impairment, and how to accurately test those levels, are resolved before the legalization date. On the other hand, employers must continually update and communicate their current drug policies so as to make expectations clear to employees.”

Therefore, in order to adequately and efficiently adapt to the changes on the horizon, employers will have to change and rethink their tactics in the following ways:

  1. Employers will have to either introduce or review and amend their existing workplace policies surrounding the use of cannabis. Though it is a legal change, it may also require people to consider a social shift away from traditional views on marijuana and its use. A key change would be getting rid of any policy that references the use of marijuana as an illegal or “off-duty” activity that is shunned.
  2. Employers ought to be mindful of the fact that not all use of marijuana is recreational as there are those who use it to treat illnesses and medical conditions. Under federal and provincial human rights legislation, employers have a duty to accommodate employees with disabilities to the point of undue hardship.
  3. For limited circumstances, employers may also need to authorize a leave of absence while an employee of theirs is undergoing marijuana treatment. Such employees would likely require reinstatement once they have recovered from their illness or medical condition.
  4. Employers and managers will have to find other new methods of dealing with intoxication at work whilst creating a safe environment for employees to ask questions or seek guidance.
  5. Employee accommodation must now be balanced with the broader duty under federal and provincial occupational health and safety legislation to provide for a safe workplace. For example, section 25 of the Ontario Occupational Health and Safety Act requires that employers take “every precaution reasonable in the circumstances for the protection of a worker.” Safety-sensitive positions, such as those involving the operation of heavy machinery, may include essential duties or requirements that create safety concerns when a proposed accommodation plan includes marijuana use.

However, as employers make changes towards adapting to the legalization of marijuana, they are cautioned not to go overboard and ignore their employee’s human rights. For instance, the Canadian Union of Public Employees also cautioned employers from using legalization as an excuse to pursue more random drug testing policies, which are rarely permitted and require a high legal bar to protect workers’ human rights.

Although all these changes will occur at a seemingly fast pace, the Conference Board states that the in-house organizational changes will not occur overnight. Instead, it will require numerous policy changes and a learning curve before the organization can return to a state of normalcy.

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