What Employers Need to Know for Creating Policy
This article is Part 1 of a 2-Part series authored by Corridor’s Subject Matter Expert on Alcohol & Drugs, Barb Butler.
Organizations in many sectors across the country have policies in place to ensure employees are fit for work, free of any negative effects of alcohol or other drug use. In addition to employees, these policies provide direction to contractors present on the organization’s worksites or performing work on their behalf.
The policies focus on safety and set out clear standards on alcohol and drug use plus possession, outline available prevention and assistance programs, set out procedures to investigate a possible violation of the standards including alcohol and drug testing under certain situations, and set clear consequences for a violation of the Policy. This approach is commonly used and has been consistently upheld in arbitration and human rights cases over the past years.
Clearly the use of alcohol, illicit drugs and other mood altering substances, as well as the misuse of medications in conjunction with work, present a safety risk. The opioid challenges, whether used legally or illegally have been a major concern in many communities and have also impacted workplaces. This blog however will focus on the challenges associated with the changes in the laws around cannabis, and the impacts on employers.
With respect to medical cannabis, Health Canada stopped providing licenses to individuals and access to the Government’s own cannabis source on April 1, 2014. This system was replaced with private producers who currently number over 850 and are licensed to cultivate and provide access to medical cannabis for individuals with a legitimate authorization from a medical practitioner (Note: Cannabis is not a prescription medication).
Health Canada has expressed concerns cannabis should only be used in limited situations, as has the College of Family Physicians. Despite that, it has evolved to a situation where individuals are accessing it for a wide range of reasons that often can be addressed through other more appropriate and manageable medications.
Licensed producers are responsible for cannabis distribution for medical purposes, and users can only source it legally through a licensed producer. Producers can sell oils for oral consumption with THC strength limited to no more than 30%. However, there is no cap on the strength of dried, fresh, plant cuttings or seeds for those legally authorized to grow their own. The result is that cannabis has gotten stronger and stronger over the years, and there is limited research on the impacts on human performance at the higher levels.
Employers have a legal obligation to ensure occupational health and safety laws are met. Employers and their representatives can be criminally liable for failure to take all responsible steps for safety. As a result, the direction on medication use has been updated in many policies stressing employees considering using any medication (including medical cannabis) cannot be unfit for work due to medication use.
Employees are required to investigate through their doctor or pharmacist whether a medication can affect their personal fitness for duty by advising the medical professional of their job requirements. With this procedure employees are normally required to choose a safe alternative medication when available, to ensure they are fit to meet their job requirements. However if a medication is needed and its use will impact fitness for duty, the employee must advise the company of any need for modified work. This would include cannabis used for medical purposes. The employer will take appropriate steps to confirm the nature and duration of work modification and determine what is acceptable when also meeting their safety obligations.
As well, companies need to have a plan in place if a worker tests positive for cannabis and then claims authorization to use for medical purposes. This means determining if it has indeed been legally authorized, that it is legally sourced, and whether use of the product presents a safety risk. Many “Third Party Administrators” of the testing program will be able to assist with this investigation.
A further challenge to employers was the legalization of cannabis for recreational purposes on October 17, 2018 by the Federal Government. The original legislation allows (Note: there may be provincial regulations that adjust these basic standards):
- Possession or transfer of 30 grams
- Individuals can grow four plants from legally obtained seeds
- Make products at home (food, drinks)
- Can consume cannabis where locally allowed
The products must be legally sourced from locally approved retail outlets that are now common across the country. These outlets are required to obtain their supplies from Health Canada licensed producers. Apparently however this arrangement has not made a substantive change in the availability and use of cannabis obtained illegally.
One year later on October 17, 2019 new legislation allowed for edibles to be legally sold. Edibles present a particularly difficult challenge to determine potency as one bite can be different than another. The edible products act more slowly in the stomach and often people don’t wait for the effects, eat more, and then get a strong unexpected “hit”. Legally there is strict packaging and labeling, and it cannot be combined with caffeine or alcohol. However, many products on the “black market” are easily accessed, can show up on a job site looking like food, and can be found in tea, coffee or energy drinks, which is a challenge for employers.
Finally products containing CBD are increasingly available in the market. CBD is derived from the cannabis plant and contains some level of THC that will enter the bloodstream, can end up in the brain and can be impairing. Increasingly products are showing up online or from suppliers claiming to be THC free and able to address a wide range of medical problems. The Health Canada producers can sell products containing CBD, but must accurately confirm the CBD and THC content. It cannot be legally sold elsewhere, however is readily available online and from dealers with extensive mislabeling of content. And there is limited evidence of medical benefits.
The World Health Organization has stated that cannabis is the third most commonly used psychoactive substance in the world after alcohol and nicotine. And a study released in early April of this year found annual sales of legal cannabis nearly doubled between March 2020 and February 2021 in Canada, reflecting the rollout of many more retail stores across the country and the introduction of new products. There was no information on the illicit market.
Part 2 of this cannabis review will address the overall direction employers should consider in their workplace policies.
Barb Butler, B.E.S., M.B.A.
Alcohol & Drug Expert
Barb is Canada’s preeminent A&D expert with over 30 years’ experience implementing corporate alcohol and drug policy and strategies across North America. Our partnership with Ms. Butler provides you access to her comprehensive knowledge base and best practices regarding alcohol and drugs in the workplace. She works with organizations in a wide variety of sectors across the country to help them develop and implement alcohol and drug policies. This includes the development of communications strategies and awareness and education programs to meet unique corporate needs. She provides expertise on the design and delivery of supervisor training programs as well as the contracting for and setting up of Substance Abuse Professionals and alcohol and drug testing services under a company’s policy. Barb is frequently involved in Canadian legal cases on this issue and is an expert in the boundaries established for company programs by courts, human rights tribunals and arbitrators. She has ongoing involvement in the implementation and refinement of policies and programs across Canada to meet U.S. DOT regulatory requirements for motor carriers entering the United States.