Is your workplace prepared for legalized marijuana? Wellpoint Work Better Safer 2017 Conference September 12, 2017 Kevin Wilson, Q.C. 11/14/2018

IS YOUR WORKPLACE PREPARED FOR LEGALIZED MARIJUANA? Kevin Wilson, Q.C. 11/14/2018

AGENDA Overview of Marijuana Legalization Issues Facing Employers in the U.S. Impact on Safety Sensitive Positions Impact on Non-Safety Sensitive Positions Effective Employer Policies 11/14/2018

Overview of marijuana legalization Draft legislation was introduced Spring 2017 Loosely based off “Colorado Model” Anyone over 21 can purchase and possess one ounce of marijuana products (buds, edibles, oils, etc.) Anyone can grow up to six marijuana plants in an enclosed space, so long as only three plants are flowering at once Cannot consume marijuana openly or publicly; only legal for private use 11/14/2018

Final government task force recommendations National minimum age of purchase of 18 Similar advertising restrictions as tobacco Labelling to include THC levels Public education on risks of use Fund education, research and enforcement Facilitate and monitor research on cannabis and impairment, considering implications for OHS policies 11/14/2018

Final government task force recommendations No co-location of alcohol and cannabis sales Limits on density and location of storefronts, including appropriate distances from schools, public parks, community centres, etc. Personal cultivation of cannabis to be allowed to a maximum of 4 plants/100 cm high with reasonable security measures to prevent theft/youth access Public use restrictions similar to tobacco 11/14/2018

Final government task force recommendations Invest in research to better link THC levels with impairment Determine whether to establish a “per se” limit as a comprehensive approach to cannabis-impaired driving Support to the development of an appropriate roadside drug screening device Invest in DRE training and staffing 11/14/2018

Draft legislation Largely adopted task force recommendations Went with per se limits for cannabis-impaired driving Tentative plan is to legalize in July of 2018 11/14/2018

Draft legislation Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts and Bill C-46, An Act to amend the Criminal Code will reform the legal regime governing the use of recreational cannabis. Highlights include: Individuals can possess up to 30 grams of cannabis on hand at a time; Individuals can grow up to four plants in their own home; Harsh penalties for illegally supplying pot to minors (up to 14 years in jail); Roadside saliva tests if impairment is suspected; can lead to a demand for mandatory evaluation by a drug impairment expert or a blood sample; and Age of use can align with provincial drinking ages. 11/14/2018

Roadside testing in canada Bill C-46, An Act to amend the Criminal Code Following a legal roadside stop, law enforcement would be authorized to demand that a driver provide an oral fluid sample if they reasonable suspect that a driver has drugs in their body. A positive oral fluid would assist in developing reasonable grounds to believe that an offence has been committed. Once the officer has reasonable grounds to believe an offence has been committed, they could demand a drug evaluation by an “evaluating officer”, of a blood sample. 11/14/2018

Roadside testing in canada Proposed per se limits: 1) 2-5 ng/mL of THC: Having at least 2 but less than 5 ng of THC per mL within two hours of driving would be a separate summary conviction criminal offence, punishable only by a fine. This lower level offence is a precautionary approach that takes into account the best available scientific evidence related to cannabis. Punishable by a maximum fine of up to $1,000. 11/14/2018

Roadside testing in Canada Proposed per se limits: 2) 5 ng or more of THC: Having 5ng/mL of THC within two hours of driving would be a hybrid offence. 3) Combined THC and Alcohol: Having a blood alcohol concentration of 50 mg per 100mL of blood, combined with a THC level greater than 2.5ng/mL within two hours of driving would be a hybrid offence. Both hybrid offences would be punishable by mandatory penalties of $1,000 for a first offence, and escalating penalties for repeat offenders. 11/14/2018

Likely Outcomes after legalization in canada? Legal marijuana will be as readily available to adults as alcohol and cigarettes Marijuana will be as readily available to youth as alcohol and cigarettes, despite efforts to prevent that Usage among adults and youth will rise from existing levels with the stigma of criminality removed and ease of access One recent poll suggest 900,000 Canadians likely to start using once legalized The science on standards of impairment and testing for impairment will remain lacking for foreseeable future. 11/14/2018

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ISSUES FACING U.S. EMPLOYERS 11/14/2018

Issues facing u.s. employers 11/14/2018

Issues facing u.s. employers 32% increase in marijuana – related traffic deaths Percentage of U.S. adults using marijuana doubled in 3 years to 13% In Colorado, 1 in 4 adults reported past month use 1 in 8 reported daily or near daily use Lack of regulation of “edibles” increased problems Pot-related poison control calls increased 5x 11/14/2018

Issues facing u.s. employers Measuring Impairment Unlike alcohol, there is no definitive test that can determine whether someone is presently impaired by marijuana Current testing only measures the level of THC or the metabolites in the body. THC affects everyone differently, so difficult to predict level of impairment on this basis Zero tolerance policies are popular for these reasons 11/14/2018

Issues facing u.s. employers Implementing and Enforcing Zero-Tolerance Policies Best way to ensure employees are not impaired at work Colorado Supreme Court ruled the state’s lawful off-duty conduct statute does not protect employees from termination for marijuana use in violation of an employer’s zero tolerance drug policy Beware: zero tolerance drug policy may deter employees from applying to or remaining with a certain employer Seen as employer exerting control over employee’s personal time 11/14/2018

Issues facing u.s. employers Educating Employees about Rights and Obligations Inform employees that marijuana cannot be used in the same manner as tobacco; marijuana is treated like alcohol Cannot use marijuana before or during work Cannot bring marijuana to work 11/14/2018

Is illegal marijuana a safety issue today in canada? For adults? For minors? 11/14/2018

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Manitoba public insurance roadside survey Negligible number of drivers tested positive for alcohol Suggests drivers understand should not drink and drive However, prevalence of positive drug tests indicates both widespread use and lack of awareness regarding drugs and impairment In 2013, 40% of fatally injured drivers in Manitoba tested positive for drugs 11/14/2018

Toronto transit commission Controversial random testing program for safety sensitive positions Not yet determined legal But Court refused to issue injunction to stop 8 workers tested on first day 11/14/2018

marijuana and OH&S Under OHS legislation employers have the duty to “ensure, as far as reasonably practicable, the health, safety and welfare at work of all the employers’ workers”. Employees do not have a right to be impaired in the workplace where their impairment may endanger their own safety or the safety of co-workers. 11/14/2018

Impact on Safety Sensitive Positions Implementing Zero Tolerance Policy Most effective way to prevent impairment in the workplace Often use U.S. Department of Transportation THC cut off levels Policy could cover all employees, or only safety sensitive employees Beware: can only drug test safety sensitive positions Unique considerations apply to medical marijuana license holders 11/14/2018

Impact on Safety Sensitive Positions Drug and Alcohol Testing Policies Generally limited to safety sensitive positions, and only in certain situations (after an incident, as a pre-condition of employment, etc.) Case law suggests employer must demonstrate, through concrete data, a workplace problem with drug and alcohol use to justify random testing Random testing not allowed as proactive measure to avoid accidents or injuries in the workplace 11/14/2018

Impact on Safety Sensitive Positions Random Drug & Alcohol Testing Irving Pulp (2013) Random alcohol testing by an employer, without proper justification, is not permitted Employer must demonstrate evidence of enhanced safety risks to justify random alcohol testing 11/14/2018

Impact on Safety Sensitive Positions Dealing with Regular Marijuana Users Unlike prescription drugs, no controls on amount of THC, frequency, or dosage. Different effects on casual vs. frequent users. Evidence suggests regular marijuana users are at a constant low level of impairment, and thus should not be employed in safety sensitive positions Health Canada says impairment can last for over 24 hours after use But, one Arbitration Board held in 2015 that an employee can work in a safety sensitive position while using marijuana on a regular basis 11/14/2018

PROACTIVE STEPS FOR EMPLOYERS Implementing Drug and Alcohol Policies At minimum, policy should prohibit marijuana use before and during work and prohibit possession in the workplace Employers should create new policy or revise current policy to include recreational marijuana as a prohibited drug Duty to disclose off duty use? Policy should detail disciplinary action available to employer where policy is violated Determine which positions are safety sensitive 11/14/2018

Education & Training Educate employees Provide updated policies well in advance and have employees sign acknowledgments Educate employees on cannabis and how it will affect performance Advise employees in safety-sensitive procedures of the consequences for being impaired while on the job Address acceptable use of prescription drugs (including medical marijuana) and non-prescription, impairment-inducing substances (including marijuana) 11/14/2018

Education & training Educate supervisors/management Provide training on spotting symptoms/signs of use, and administering impairment testing Determine specific indicators for job-specific impairment, for example: Hand-eye coordination? Difficulty maneuvering equipment? Testing for mental comprehension? 11/14/2018

Q&A 11/14/2018

Kevin Wilson, Q.C. T: (306) 975-7103 F: (306) 975-7145 KWilson@mltaikins.com MLT Aikins”, the MLT Aikins Designs and “Western Canada’s Law Firm” are trademarks of MLT Aikins LLP. Copyright © 2017 MLT Aikins LLP. All rights reserved. 11/14/2018