1. Petrochem Forum 2018

2. Marijuana in the Workplace
Legalization of Marijuana
Marijuana and Impairment
Fitness for Duty – Expectations, Policies & Procedures
Proven Strategies to Manage Drugs & Alcohol in the Workplace
Drug Testing (Toronto Transit Commission)
Supreme Court Ruling

3. Legalization of Marijuana
Federal government has promised to legalize recreational use under
Bill C-45, the Cannabis Act:
Allow for national recreational use by individuals 18 and older.
Allow possession of up to 30 grams.
Individuals will be permitted to grow up to four plants for their own use.

4. Legalization of Marijuana
Ontario Government response:
Minimum age to purchase, possess or use recreational cannabis – 19 years old (same as alcohol and tobacco)
Permitted use restricted to private residences (not in public places, workplaces or when inside a motor vehicle)

5. Marijuana and Impairment
Health Canada provides the following warnings for the use of marijuana:
Using cannabis or any cannabis product can impair concentration, ability to think and make decisions, reaction time and co-ordination.
Use has an affect on motor skills, including the ability to drive.
Use can also increase anxiety and cause panic attacks, and in some cases cause paranoia and hallucinations.
Cognitive impairment may be greatly increased when cannabis is consumed along with alcohol or other drugs that affect the activity of the nervous system (e.g., opioids, sleeping pills, other psychoactive drugs).

6. Marijuana and Impairment
Impairment affected by:
Strain & potency of Marijuana
Physical characteristics of the user
Frequency of use
Method of consumption
Health Canada makes reference to depending on the dose, impairment from marijuana can last for over 24 hours after last use.

7. Medical Marijuana
Use and possession of marijuana is illegal without proper medical documentation
If employee has a disability and proper medical documentation, medical marijuana is treated the same as any other prescription drug
On-the-Job impairment by medical marijuana is not protected or approved by the Human Rights Code or Occupational Health and Safety Act.

8. Duty to Accommodate
A legal duty to accommodate is imposed by the Ontario Human Rights Code. The Ontario’s Human Rights Code provides that every person has a right to equal treatment with respect to employment due to a disability (addiction is a form of disability). An employee has an obligation to inform the employer of the need for accommodation. The employee must provide sufficient information to substantiate the employee’s limitations and restrictions and the impact on his or her ability to perform work functions. The employer must accommodate to the point of undue hardship. Accommodation can be a multi-party inquiry (employee, employer and union (if any).

9. Duty to Accommodate
Employers have a duty to accommodate individuals who encounter barriers due to a protected ground, up to the point of undue hardship.
Accommodation could be required if:
use of marijuana is a medical treatment (as part of accommodating the disability that is being treated); or
use of marijuana is an addiction.
Recreational use is not an accommodation or human rights issue.

10. Accommodating Employees
Treat the employee’s disclosure confidentially, but ask the employee for proof of their prescription/authorization (i.e. purchase history from a licensed provider) without getting into their specific diagnosis.
Ask the employee about his/her medication usage
Ask if the employee has a valid authorization?
When and how often they need to take the product?
Will it be at work?
How will they take it? How can they take it (in what form)?
Where will they take it?
How long do they anticipate needing to take it?
What are the side effects and restrictions when using – and for how long?

11. Accommodating Employees
If the employee’s use of marijuana is an addiction, the employer’s obligation is similar to accommodation of a disability.
Accommodation for an addiction involves time for and attendance at addiction treatment (not use of the narcotic at work).
If the employee’s use of marijuana is not an addiction and not medical, then discipline, including termination, could result.
Beware of the self-prescribing employee…
Review and update policies on drug/alcohol use in the workplace. Once recreational use permitted, policy and discipline cannot be based only on “illegality.”
Similar to alcohol – use is legal, but an employer can prohibit its “recreational” use and possession at the workplace.

12. Employee Duties Advise employer of disability
Make his/her needs known to the best of their ability
Answer questions and provide information regarding restrictions and limitations
Participate in discussions regarding possible accommodation
Cooperate with any experts whose assistance may be required
Meet agreed-upon performance and job standards once accommodation provided
Work with employer on on-going basis to manage accommodation process
Discuss disability (only) with individuals who need to know

13. Consider a Balanced Approach
Collective Agreement
Privacy
Safety
Human Rights
Fitness for Duty

14. Policies and Procedures
A Fitness for Duty policy should include a clear statement that the policy promotes safety and deters unsafe behaviour.
Currently, most drug and alcohol policies lump marijuana together with the prohibited use of other illegal and illicit drugs
Once legalization occurs, the legal use of marijuana will have to be treated in a similar manner to rules around alcohol consumption
the policy should encourage/require employees to disclose substance abuse issues, without fear of reprisal or discipline
Provide for and set out a process for employees to ask for and obtain treatment
Maintain confidentiality
Provide for a procedure for appropriate accommodation
follow-up and return to work strategies

15. Policies and Procedures
Update policies regarding disclosure of use of marijuana and any other narcotic.
Update policies regarding use and disclosure of prescription drugs that may impact employee performance or ability to work safely.
Update policies regarding accommodation (with a clear reference to rehab process, programs and return to work requirements).
Employers must balance the need to maintain a safe work environment with the employee’s right to accommodation of a disability – up to the point of undue hardship.

16. Practical Strategies
Train supervisors on how to recognize signs of marijuana impairment:
Euphoric/increased sense of well being
Lack of motivation
Lowered inhibitions, talkativeness
Dry mouth and throat
Increased appetite
Impaired coordination, concentration and memory
Increased heart rate

17. Elements of a Fitness for Duty Policy
Application of the Policy
Responsibilities of Workers
Workplace Standards
Detection and Deterrence
Accommodation
Discipline & Consequences

18. Steps to Development & Implement a Fitness for Duty Policy
A mandate from senior leadership
Management and Worker collaboration
Expert advice and legal review
JHSC review, comments, & input
Annual review and training
Consistency in application and enforcement

19. TTC Update
The TTC launched a plan to conduct random, third-party drug and alcohol testing on 20 per cent of employees in safety-sensitive positions as part of its Fitness for Duty policy.
Those positions include vehicle operators, supervisors, transit control centre staff and maintenance workers.

20. TTC Statistics
Two per cent of Toronto Transit Commission employees randomly tested for drugs or alcohol were found to be impaired, newly released figures show, and marijuana was by far the substance of choice (55%).
Twenty-three employees out of 1,174 tested between May 8 and Oct. 19, 2017 failed the test.

21. Stewart v. Elk Valley Coal Corp.
Stewart v. Elk Valley Coal Corp., 2017 SCC 30:
Safety incident with loader led to positive drug test and admission of cocaine addiction
Termination led to Human Rights complaint
Complaint dismissed on basis of policy breach, not addiction. Decision affirmed by Alberta Queen’s Bench and Court of Appeal

22. Stewart v. Elk Valley Coal Corp.
ISSUE: Can employees who test positive for illegal drugs be dismissed without that dismissal constituting unlawful discrimination under human rights legislation?
Answer: According to the Supreme Court, when that worker is fired not for his/her addiction, but for violating a fitness for duty policy by attending work under the influence of drugs.
Takeaways: The SCC decision in Stewart highlights that employer drug and alcohol policies should not only address workplace safety concerns but also the accommodation of employees with addiction. As noted above, Mr. Stewart’s dismissal was likely upheld because Elk Valley’s policy had been clearly communicated to employees and allowed for disclosure of addiction with treatment rather than disciplinary consequences.

23. Stewart v. Elk Valley Coal Corp.
Implications for Employers: The decision by the Supreme Court of Canada highlights three key factors for employers to consider when balancing the rights of employees with employer obligations:
Safety Matters - The safety of the workplace and other employees is a valid objective for employers and will be given considerable respect by adjudicators when reviewing the actions of employers.
Policies Matter - The Policy relied upon by the employer was clear and well-known. The employees were trained on the policy and signed acknowledgements of their awareness of its terms. It is important that workplace rules not only exist, but they are known to employees.

24. Stewart v. Elk Valley Coal Corp.
Clarity Matters - The majority relied heavily on the clear language of the termination letter in upholding the termination and the decision of the Tribunal. Termination letters and any reasons specified in those letters should be succinct and accurate.

25. Integral HR Solutions Inc.
Thank You!
Questions…
Comments…
Anthony Folan
Integral HR Solutions Inc.
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