1. Up in Smoke: Legalized Marijuana and the Workplace
Anthony Purgas

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

3. 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

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

5. 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

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

7. 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

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

9. 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

10. 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

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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

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

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

21. 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

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

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

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