Up in Smoke: Legalized Marijuana and the Workplace Anthony Purgas

Marijuana and Employment Marijuana Today Recent Cases Drug Testing Legalization Strategies for Employers and Managers 2

Marijuana Today It is currently illegal to possess marijuana unless an exemption is given Medical marijuana Not controlled dosages Effects not predictable or certain 3

Marijuana Today Controlled Drug and Substances Act Ministerial exemption can be granted 4

Marijuana Today Access to Cannabis for Medical Purposes Regulations (“ACMPR”) Must obtain prescription Maximum daily amount set under the ACMPR Register with and order from a licensed producer or grow limited amount 5

Marijuana Today ACMPR results in conflicts in workplace management Safety issues versus accommodation of disability 6

Recent Cases Calgary (City) v. CUPE, Local 37 (Hanmore Grievance), 2015 A.G.A.A. No. 43 30 year grader operator Suffered from degenerative neck disease and chronic pain 7

Recent Cases (Hanmore Grievance) Received prescription for medical marijuana Obtained permit Advised two supervisors of prescription and permit 8

Recent Cases (Hanmore Grievance) Continue working for one year No issues of impairment and performance was satisfactory Upper management learned of marijuana use and became concerned 9

Recent Cases (Hanmore Grievance) Employer investigation Employee put into non-safety-sensitive position Employee said only had a couple of puffs before bed and never operated equipment Employer ordered independent medical examination Investigation took nine months 10

Recent Cases (Hanmore Grievance) The City concluded the employee had a dependency and could not be returned to the safety sensitive position 11

Recent Cases (Hanmore Grievance) Arbitration Board’s findings The employer’s investigation was flawed; the employee reported his medical marijuana use to his supervisors as was required by the City’s policies and was permitted to work without incident Reinstated him to his position with conditions 12

Recent Cases (French Decision) French v. Selkin Logging Ltd., 2015 BCHRT 101 Employee had about 6 months of service Also M. French had previously had cancer in 2009 which was treated but it returned in later 2013, which led to him using marijuana again 13

Recent Cases (French Decision) The employer had a zero tolerance policy for drugs in the workplace Mr. French had no medical authorization for using marijuana or Health Canada authorization to use marijuana 14

Recent Cases (French Decision) Mr. French said he smoked it for pain He smoked it in front of other employees, but not in the presence of his Foreman or the owner of the company Mr. French and Mr. Finlay hit a moose with the company truck and the mechanic found marijuana in the truck 15

Recent Cases (French Decision) Mr. French said if he continued working, he would continue to smoke marijuana on the job The company issued a termination letter to Mr. French The employee filed a discrimination complaint based on physical disability 16

Recent Cases (French Decision) A prima facie case of discrimination was found because Mr. French was disabled and used marijuana to manage pain A bona fide occupational requirement was established by the employer: having the zero tolerance policy for safety reasons was rationally connected to the job 17

Recent Cases (French Decision) Without the legal authorization to smoke marijuana at work and without the medical authorization indicating it was safe for Mr. French to smoke marijuana at work, it amounted to an undue hardship on the employer in the reasonable accommodation of the disability. The complaint was dismissed. 18

Drug Testing Canadian Model Reasonable Cause and Safety-Sensitive Testing Pre-site testing Status of purely random drug testing 19

Legalization Federal Government Announcement Cannabis Act introduced April 13, 2017 Legalized by July 1, 2018 Will be regulated by Provinces 20

Legalization Preceded by Federal Report in December 2016 Report does cover workplace safety in limited extent Main conclusions on impairment and cannabis Upcoming issue with legalization 21

Strategies for Employers Draft or review policies Clear policies Flexible (include last chance or immediate termination as options) Include rights to order testing 22

Strategies for Managers Usage guidelines - a hybrid of smoking and drinking Be cognizant of improvements in testing OH&S issues 23

Thank You For Your Attention Questions Are Welcome Anthony Purgas 780.497.3391 Toll Free: 1.800.661.7673 (RMRF)