Marijuana in the Workplace

A new definition of “joint” pain 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation What does it mean to you? Legislation Impact Drug testing Medical marijuana Policies Conclusions 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation LEGISLATION Bill C-45: An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the “Act”) The objectives of the Act are to prevent young persons from accessing cannabis, to protect public health and public safety by establishing strict product safety and product quality requirements and to deter criminal activity by imposing serious criminal penalties for those operating outside the legal framework. The Act is also intended to reduce the burden on the criminal justice system in relation to cannabis. 5/16/2018 CAHRMA Conference Presentation

Allowable under the Act Purchase fresh or dried cannabis, cannabis oil, plants and seeds for cultivation from either a provincially or territorially regulated retailer, or where this option is not available, directly from a federally licensed producer; Possess up to 30 grams of dried legal cannabis or equivalent in public; Share up to 30 grams or equivalent of legal cannabis and legal cannabis products with other adults; Cultivate up to 4 plants not exceeding a height of 1 metre in their own residence (4 plants total per household); and Alter cannabis at home in order to prepare varying types of cannabis products (e.g., edibles) for personal use provided that no dangerous organic solvents are used in the process.” 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Edibles “Designing an appropriate regulatory system for cannabis edibles is a complex undertaking and there are unique potential health risks and harms that need to be carefully understood before the development and coming into force of these regulations. For this reason, the Government of Canada will need to take an appropriate amount of time to develop, and implement regulations that will result in safe edible products eventually coming to market. As such, it is the Government's intention that, upon coming into force of the Act, only dried and fresh cannabis, cannabis oil as well as seeds and plants for personal cultivation will be made available for legal purchase. Following the coming into force of the Cannabis Act, the Government will develop and publish regulations - in line with the Task Force recommendation - to permit the sale of edible products. Once regulatory oversight for these products - such as measures to protect public health and safety, standardized serving sizes and potency, child-resistant packaging requirements, and standardized health warnings - has been developed and put in place, it is the intention of the Government to allow edibles to be sold.” 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation IMPACT How does it work? What effect does marijuana have? Health and safety Memory and thinking How long does the impact last? 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation How Does it Work? Cannabis sativa is the botanical name for the herbaceous plant that produces the substances commonly known as cannabis and hemp 2 main compounds: Delta-9- tetrahydrocannabinol (THC): Responsible for the psychoactive, or mood-altering effect of the substance Cannabidiol (CBD): Responsible for many of the medicinal effects claimed. Causes no high, not thought to be addictive. 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation How Does it Work? Wide variety of forms Edibles Oils Dried Wide variety of methods Smoking (joints and pipes) Vaporization Dabbing Tinctures Topical Form and method will depend on reason for using 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation How Does it Work? Prescribed as treatment for: Pain (reduce or eliminate use of strong opioids); Seizures; Side-effects of chemotherapy (nausea, lack of appetite, specifically); and Chronic pain Effectiveness and long-term effects largely unknown due to lack of testing 5/16/2018 CAHRMA Conference Presentation

What effect does Marijuana have? Pace of metabolizing marijuana depends on: Tolerance, past use, and frequency of use Strain Body weight and metabolic rate Fitness level and diet Gender Ethnicity 5/16/2018 CAHRMA Conference Presentation

What effect does Marijuana have? Effect of marijuana use also depends on: Method of use Environment when taken Mood, personality Whether taken with anything else 5/16/2018 CAHRMA Conference Presentation

What effect does Marijuana have? Recreational Doses Short term memory problems Impaired thinking Loss of balance & coordination Decreased concentration Changes in sensory perception Impaired ability to perform complex tasks Decreased alertness Decreased reaction time 5/16/2018 CAHRMA Conference Presentation

What effect does Marijuana have? Medicinal Doses Very little known due to lack of testing Health Canada recommends the prescription of high CBD, low THC medical marijuana However, the treatment one is seeking will determine whether or not CBD or THC will be effective. Tolerance 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation DRUG TESTING 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Drug testing Contentious issue About 10% of Canadian worksites of 100 or more test for drugs What does it prove French vs Selkin Lodging (BC) Calgary vs CUPE (Alta) M vs V Gymnastics Club (BC HR) 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Drug Testing No reliable scientific testing mechanism for current impairment Three main testing approaches (urinalysis, oral fluid analysis, impairment testing) cannot identify current impairment Level of THC in bodily fluids cannot be used to reliably indicate the degree of current impairment No established metric for cannabis intoxication (no .08 equivalent) THC can remain in the system of a chronic user at significant concentrations with no indication of impairment 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Impairment Testing Impairment testing checks for actual, current impairment for specific tasks Does not test specifically for drugs or alcohol; can apply to fatigue, stress or other illness Impairment tests can vary depending on the workplace, but can include job-specific tasks (like driving a forklift through pylons), a skill test, or observations of the employee’s performance, behavior and physical symptoms by trained supervisors 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Drug Testing – Case Law Case law developed from human rights tribunal decisions, arbitral jurisprudence, and court decisions Well settled law: Employers can test employees in safety sensitive positions if: Reasonable cause Accident or near miss and employee’s impairment could be a contributing factor Return to work agreement 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Random Testing The most recent case upholds the rulings in Irving and Suncor that employers seeking to implement random testing are required to demonstrate that: They have a dangerous workplace; There is a general problem with drug and/or alcohol abuse; and They are not randomly testing as a proactive measure to avoid accidents or injuries in the workplace. 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Medical Marijuana Access to Cannabis for Medical Purposes Regulations, SOR/2016-230 Treated similar to drugs and alcohol and impairment on the job Duty to accommodate What does a prescription mean? Workplace safety 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Duty to Accommodate Manitoba – the duty to accommodate is the employer’s Alberta – accommodation to the point of undue hardship is required by law Canada – the employer must be able to document the process that was observed in considering and acting on the employee’s request for accommodation 5/16/2018 CAHRMA Conference Presentation

Prescription for Medical Marijuana Does not entitle an employee to be impaired at work while in a safety-sensitive position Does not allow an employee to compromise his or her or anyone else’s safety May not entitle an employee to smoke in the workplace. Smoke-free laws still apply (absent Doctor requirements). Does not allow unexcused absences or late arrivals. Does require the employer to find suitable workplace accommodation for employees with a prescription. 5/16/2018 CAHRMA Conference Presentation

Duty to Accommodate Issues Medical marijuana, properly authorized, used to treat underlying disability Unlike prescription drugs, no controls on amount of THC, frequency, or dosage Little to no understanding of how cannabis reacts with other substances and drugs, making it difficult to assess an employee’s impairment Difficult to judge impairment as there is no clear testing mechanism for impairment Possible to be addicted to marijuana - abuse evaluated under DSM-V criteria Employers (and legislators) now have the burden of understanding how medical marijuana works with little resources 5/16/2018 CAHRMA Conference Presentation

Medical Marijuana – other considerations Requirement of physician authorization before duty to accommodate is triggered Production of Medical Records Disclosure of “prescription” 5/16/2018 CAHRMA Conference Presentation

Workplace safety and duty to accommodate Workplace safety will govern when looking at the use or medical permission for marijuana. Under OH&S legislation, employers have a duty to “ensure, as far as reasonably practicable”, the health, safety and welfare at work of all workers While there is a duty to accommodate for medical marijuana, it does not override the health and safety of your people or operations. 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation POLICIES Drug and alcohol policy Accommodation policies Health policies 5/16/2018 CAHRMA Conference Presentation

Drug and Alcohol Policy Upon legalization, recreational use of marijuana can be treated like any other legal substance (alcohol or prescription drugs) that causes impairment Edit definitions that may list marijuana or cannabis as an illicit substance Enforce zero-tolerance policies for recreational users Ensure policies reiterate that employees cannot come to work or perform their duties if impaired, use on their breaks, possess in workplace, etc 5/16/2018 CAHRMA Conference Presentation

Drug and Alcohol Policy Determine who, if anyone, will be subject to drug testing. Consider requirements for drug testing: Do you have a hazardous workplace? Is there a general problem with drug or alcohol use? If random drug testing, what methods will you use? Do they test for current impairment? Will you need multiple methods of testing for impairment? 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Accommodation Policy The right to use prescribed medical marijuana to treat a disability or medical condition does not entitle any employee to be impaired at work or in the course of performing his or her duties Supports available for employees with disabilities Establish policies requiring employees to self-report medical marijuana use When are employees required to disclose? What information does the policy require them to provide? Consider prescription, note from doctor indicating dosage, strain prescribed, and possible effects Consequences for failure to report 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Health Policies “78% of workplaces have not done any work to get medical marijuana covered with existing benefit plans and are not planning to.” [HUB] No smoking policy – life insurance coverage Drug coverage under extended health or HSA Costs and premiums Marijuana is not an authorized “drug” It has no drug identification number (DIN) 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Conclusions Will create a quagmire of issues Cause production and operation problems Arguments, arbitrations and court cases over the next few years Review your policies and make adjustments Don’t “react” blindly Think through your issues and respond accordingly 5/16/2018 CAHRMA Conference Presentation

CAHRMA Conference Presentation Questions 5/16/2018 CAHRMA Conference Presentation