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

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

3. 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
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4. 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
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5. 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
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6. 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
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7. 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
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8. 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
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9. 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.
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10. 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.
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11. 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.
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12. 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.
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13. 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.
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15. ISSUES FACING U.S. EMPLOYERS
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16. Issues facing u.s. employers
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17. 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
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18. 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
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19. 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
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20. 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
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21. Is illegal marijuana a safety issue today in canada?
For adults?
For minors?
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24. 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
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25. 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
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26. 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.
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27. 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
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28. 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
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29. 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
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30. 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
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31. 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
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32. 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)
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33. 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?
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34. Q&A
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35. 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