It isn’t an easy question. How can you make sure all employees are fit for work and that they can do the job without endangering their health (or the health of others) without violating their rights or ending up in court?
With recreational cannabis legalization in the parliamentary pipeline, employers in all sectors will be wrestling with impairment issues at work.
For safety-sensitive industries like agriculture, risks abound.
It’s certainly an issue on the insurance industry’s radar. Saskatchewan Government Insurance (SGI) provides vehicle insurance and registration and driver’s licensing for Saskatchewan residents. It operates on a break-even basis. SGI also has a division that offers other insurance products in several provinces.
Since liability depends on circumstances, SGI is reluctant to offer legal advice for hypothetical scenarios, according to Tyler McMurchy, media relations manager. But when it comes to impairment, the message is clear.
“In any event, employers should prevent employees they suspect are impaired from operating a motor vehicle or any other machinery that could hurt or kill someone,” says McMurchy.
If a farmer lets an impaired employee drive a plated vehicle, knowing that the employee is impaired, damage to that vehicle in the event of an accident will not be covered by the farmer’s insurance, McMurchy says. Importantly, insurance would also be denied for any resulting claims against the farmer for damage to persons or property.
“To be clear, that means they would be responsible for paying for those damages themselves,” McMurchy says.
Extra caution is needed any time large equipment is on the road, McMurchy says, and no one should be operating vehicles of any kind while impaired.
“Beyond the legal risks, we all have a moral obligation to prevent impaired driving.”
The risk doesn’t end once the machinery is in the field.
“Depending on the circumstances surrounding an impaired farm employee, there are risks of an employer being found liable and insurance coverage denied. But those decisions are very dependent on the specific facts involved,” says McMurchy.
Machinery operation isn’t the only farm task that presents risk. Depending on the farm, employees might be working with livestock, handling chemicals, or operating equipment such as grain augers or feed mills.
Impairment would be “an extreme issue” for safety, says Jade Reeve, manager of the Canadian Ag Human Resources Council’s AgriJobs program. It’s also an issue for productivity, job performance, and attendance.
Reeve says there are no hard and fast policies yet specific to recreational marijuana use. She has been in touch with the folks at the Canadian Agricultural Safety Association (CASA), which has put on webinars to inform employers. Her council has also been seeking clarity and guidance from the government.
“But basically at this point we’re really working towards helping employers understand the duty to accommodate only goes so far,” says Reeve. Basically, the duty to accommodate only applies to prescription cannabis, not recreational use.
“Alcohol is legal but that doesn’t mean you can drink on the job,” says Reeve.
People in other industries are also concerned about the ripple effects of cannabis legalization. And while there’s no doubt that an employer should stop an impaired employee from taking on any safety-sensitive task, it’s not entirely clear how to balance employee rights with employer responsibilities.
Angela Splinter is the CEO of Trucking HR Canada, a national sector council for Canada’s trucking and logistics industry. Trucking HR Canada is trying to prepare employers for how legalization will affect the workplace. While preparing a white paper on cannabis impairment at work, Trucking HR Canada learned that not all employers understand the differences between medical and recreational marijuana.
Before signing on with Trucking HR Canada in 2011, Splinter had a human resources consulting firm and worked with the mining, electricity, renewable energy, and automotive repair and service industries. She’s not a lawyer, but the view of HR legal professionals is that medical marijuana should be treated the same way as any other prescription medication.
“This legislation is bringing out some confusion,” says Splinter. “But recreational marijuana is not a prescription. Therefore it’s not subject to human rights legislation.”
Still, that doesn’t mean farmers can immediately fire employees they suspect of lighting up at work without a prescription. Just ask Tom Whalen. Whalen is currently the interim CEO of the Petroleum Services Association of Canada, which represents the service, supply, and manufacturing sectors in the petroleum industry. Before stepping into the CEO role, he’d done everything from working as a roughneck on a service rig in Alberta to moving into management with Baker Hughes south of the border, a very large oil field service company. In that time, he’s dealt with his share of impairment issues at work.
If it’s a case of any prescription drugs, employees have a duty to disclose the prescription to the employer, says Whalen. If they don’t, it’s a bit of a grey area. If there’s a workplace accident, and the employer wasn’t aware of the prescription, it’s a problem, he says.
Impairment “really boils down to people being fit for work,” says Whalen, adding impaired employees can endanger themselves or others. In the past, when he suspected an employee of being impaired, that employee then underwent a drug test, he says.
But a failed drug test doesn’t necessarily mean termination. Splinter says whether employers need to treat cannabis dependency among employees as a disability is in a grey area. Employers need clarity, she adds.
In Whalen’s experience, if the employee says they have a substance abuse problem, you can’t terminate them. Instead the employee ends up going into rehabilitation, and the employer must support that process.
The problem with drug testing
While working in the U.S., Whalen says they did screen for drug use before hiring, as a condition of employment. And managers tested employees they suspected of being impaired.
However, that only applied to safety-sensitive roles, Whalen adds, such as working on a frac site.
For example, employers can’t realistically order office staff to undergo drug tests.
Canadian employers have fewer options. Human rights law doesn’t allow random testing or pre-employment screening for drugs and alcohol, wrote lawyer Peter Straszynski for Canadian Lawyer Magazine in 2016. And as legalization of recreational cannabis approaches, there’s less certainty around what role drug testing can play.
“The tricky thing is, drug testing hasn’t come far enough,” says Reeve. Despite advances, “the current form of drug testing will not help employers. In fact, it will probably hinder them if they decide to go that route because it just detects THC in your system, which could be from weeks ago.”
The upshot is that a positive drug test doesn’t demonstrate that the person is impaired. So if an employer fired someone based on a drug test, that employer could face a lawsuit, says Reeve.
“The challenge is measuring the impairment. That’s where drug testing has to evolve,” says Reeve. She adds that the Human Resources Professionals Association is asking government to invest in research to establish better drug testing policies. Industry also wants the government to provide two different streams of regulations — for prescription and recreational — to clarify when employers have a duty to accommodate, and when and how they can legally manage employees through discipline or termination.
Splinter says the trucking industry wants to see a national cutoff for impairment similar to alcohol, although she acknowledges the challenges around that. The industry also wants to see workplace alcohol and drug testing regulations in place, along with clear and balanced rules around an employer’s duty to accommodate employees who are impaired at work, or who suffer from dependency.
Whalen says alcohol impairment is easier to detect than cannabis. Along with established testing, typically a person can smell alcohol. Generally, alcohol-impaired behaviour is more pronounced. And marijuana tolerance can vary quite a bit, he says.
Employees at the Petroleum Services Association of Canada are working with the Workers’ Compensation Board and bringing forward concerns and possible solutions, says Whalen. But he’s concerned that cannabis legalization is putting employers in a difficult situation, as they can be held responsible if someone is hurt or killed because of impairment.
“They think they’ve solved one problem but all they’ve really done is moved it,” he says of the federal government’s move to legalize recreational marijuana. He predicts that employers will end up paying additional costs and dealing with more complications once it’s legalized.
Just how common is marijuana use? According to Statistics Canada, in 2102 57 per cent of men and 42 per cent of women aged 25 to 64 have used cannabis at least once in their lives. About 11 per cent of Canadians in the same age group reported using cannabis once or more over the previous 12 months.
Until government clarifies the grey areas, should employers deploy some common sense if they suspect an employee is impaired?
Yes, says Splinter, and they should also look at their policies. “If it’s going to be a zero tolerance policy, which many likely have, just make sure it’s very clear.”
What behaviours will you tolerate and what will you not, Splinter asks. “You have the right to identify that in your workplace policy,” says Splinter.
Employers will have more success if they identify safety-sensitive jobs or roles, says Reeve, and set zero tolerance for those particular jobs. Impairment effects on attendance or work performance should be part of a different policy than safety concerns, she adds.
Reeve says the policy should also define impairment and outline how someone could be disciplined if they show signs of impairment, says Reeve.
The fact that signs of impairment can differ between people is a challenge, Reeve acknowledges. “But employers have to have a drug policy that includes a clear definition of impairment in a way that captures what is acceptable and what is not acceptable.”
The Human Resources Professionals Association suggests listing symptoms of impairment in the policy, such as lack of concentration or poor co-ordination, Reeve adds. And the Canadian Food Processors Institute is offering an online course to help employers develop policy and understand issues around marijuana (foodprocessorsinstitute.com/shop/marijuana-in-the-workplace-issues-impacts-and-responsibilities/).
Splinter recommends having an employment lawyer vet the policy, although Reeve says that while employers have been asking about legal advice, it’s an expensive road to go down, and many employers are hesitant to pay that toll.
Ag employers are seeking policy advice from industry councils, she says, and it’s something they are working on with government and employers. “Everybody needs to know the hard-and-fast rules around this potential recreational use being legal,” Reeve says.
Once employers have set policy, they need to effectively communicate it to all staff, says Splinter. “They need to know what the expected behaviours are within the workplace.”
Finally, employers need to apply the policy consistently. “Essentially if you find yourself in any legal turmoil, if you have consistently applied that policy, that can help you,” says Splinter.
If a farmer fires one employee according to the policy, but violated his own policy by letting someone else work under similar circumstances, that’s a problem. If they don’t consistently follow their own policy, it means they don’t really have those expectations in the workplace, Splinter says.
Whalen agrees on the need for clear policy. It needs to be applied consistently. If an employer or manager lands in court after terminating someone, they have to be able to prove what the policy is and how it was implemented and enforced, says Whalen.
“But you could still lose in court,” he says.
Whalen sees consistent enforcement as a big risk, especially with prescription cannabis. Prescriptions are nothing new, but they’re difficult to deal with on a day-to-day basis, he says.
Still, to Splinter the core issue is clear. Whatever the substance, “impairment is impairment,” she says. “It’s a safety concern, whether it’s an opioid or marijuana or alcohol.”
Is your employee stoned at work?
What exactly does marijuana-impairment look like?
These questions are at the heart of much of the consternation around recreational marijuana’s possible effect on Canadian workplaces.
While cannabis consumers may have a waft of skunk about them, that’s not always the case. For example, if you eat the drug, there’s no odour.
Gord Jones, superintendent of the Toronto Police, spoke to the Ottawa Citizen in February 2017 about what specially trained police officers look for when assessing motorists for marijuana impairment. Possible signs of impairment include:
- Poor co-ordination.
- Poor balance.
- Dilated pupils.
- Elevated pulse and blood pressure.
- Inability to cross eyes.
- Red eyes.
- Eyelid or body tremors.
- Less ability to divide attention.
The problem, Jones said, is that there’s no consensus on what the legal limit should be with cannabis consumption and driving. The limits vary widely in jurisdictions where it’s legal. And while marijuana use does affect functions such as reaction time and concentration, just how many tokes it takes to impair a driver is still an open question, especially since tolerance varies.