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High Stakes: Effect of Marijuana Legislation on Safety in the Workplace

Since the Marijuana Medical Access Regulation under the Controlled Drugs and Substances Act came into effect in July 2001, the number of licences granted for medical marijuana use has grown significantly to over 28,000 in December of 2012 (Richard J. Charney, labour and employment senior law partner, Norton Rose Fulbright Canada LLP, Global News).  The legalization of recreational marijuana use including government regulated production and retail distribution of the drug will have serious implications for workplace safety and performance, particularly with respect to safety sensitive occupations.  As employment counsellors we need to educate our clients about the implications of recreational marijuana use on career options and hiring policies.

The Canadian Human Rights Commission’s Revised Policy on Alcohol and Drug Testing defines a safety sensitive position as “one in which incapacity due to drug or alcohol impairment could result in direct and significant risk of injury to the employee, others or the environment,” such as an air traffic controller or vehicle operator.  In determining a safety sensitive occupation one must take into account the industry, the nature of the workplace and the employee’s particular role in a high-risk operation. Charney purports that although medical marijuana use in the workplace has been addressed to some degree by the courts, complex questions and issues continue to surface such as whether employees in safety sensitive occupations should be permitted medical marijuana licences, should they be exempt from drug testing, and should they be able to smoke medical marijuana in the workplace despite a smoking ban.

Recognizing the negative impact that inappropriate alcohol or drug use has on an individual’s health and job performance as well as workplace safety, the Canadian Human Rights Commission revised its Policy on Alcohol and Drug Testing in October, 2009 to address the legitimate and inappropriate use alcohol and drug testing in the workplace. In a 2003 decision in the case of Milazzo v Autocar Connaisseur, the Canadian Human Rights Tribunal distinguished between casual/recreational drug users and dependent drug users.  Only dependent drug users who, by their addiction or mental illness were considered to have a disability, were protected under human rights law.  Although drug and alcohol testing is prima facie discriminatory under Canadian Human Rights law, such discriminatory practice is permitted if it is a bona fide occupational requirement.  However, as demonstrated in the Entrop v. Imperial Oil,9 case, unlike alcohol testing which can identify impairment at the time the test was taken, drug testing can only reveal past, not current use; as a result, it cannot determine if the individual was under the influence at the time of the test.  As part of a comprehensive program of medical assessment, monitoring and support, employers are justified in testing for drugs when there is:

  • a “reasonable cause” such as an employee who reports to work in an incapacitated state and with clear evidence of substance abuse;
  • an incident or accident in which there is evidence to suggest that the worker’s act or omission may be a contributing factor; and
  • when an employee has just completed a drug treatment program or discloses a current addiction to alcohol drugs.

Additionally, commercial bus and trucking operators are entitled to conduct pre-employment and random alcohol and drug testing, provided that they accommodate employees who are dependent on these substances.  Nevertheless, an employer cannot retract employment offers to prospective employees who test positive for drugs or alcohol if accommodations are not explored.

Charney recommends that employers take a proactive approach in examining workplace drug and alcohol policies, particularly in the phraseology with respect to prescription and non-prescription medication such as:

  • widening the scope of the wording to include medical marijuana;
  • stipulating acceptable and unacceptable uses of prescription and non-prescription medication;
  • the conditions under which reporting prescription and non-prescription medication use are required; as well as the
  • consequences such as disciplinary action or termination of failing to report such use.

He stresses that although medical marijuana use is a relatively new and potentially contentious issue, it is still a form of medication — just as impairment of work performance caused by other prescription medication is unacceptable so, too, is that caused by prescribed marijuana.

Another area of concern regarding legalization of marijuana is the impact of the active ingredient, delta-9-tetrahydrocannabinol (THC) on neurodevelopment of the adolescent brain, which undergoes a process of refining newly formed neurons and insulating axons especially related to prefrontal cortex functioning such as decision making, judgement, planning and problem solving. This developmental process renders youth more vulnerable to the effects of cannabis use.  Acute intoxication from the drug can generate impairment in attentional focus, information processing, motor coordination and reaction time (Hall, 2015), while long-term use beginning in adolescence has been linked to impairments in attention, memory and verbal learning.  The neurotoxic effects of marijuana also create physical changes in brain structure that control emotional and cognitive performance including executive functioning, motivation and risk taking behaviour.  Given the widespread cannabis use among Canadian youth beginning from as early as aged 10 (Crane, Schuster, Fusar-Poli, & Gonzalez, 2013; Porath-Waller, 2009; Solowij & Battisti, 2008) the impact can be far reaching.  In the working world, these neurological functions translate into soft skills such as problem solving, decision making, independence, initiative, leadership and adaptability that are vital to job success. With legalization and easy access to both medical and recreational marijuana, career guidance and education on this topic is needed at the secondary school level to ensure that students are aware of the risks and consequences of such behaviour on career options and workplace success.

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Denise Feltham
Designer of D.I.C.E. (Disability Impact on Career/Employment). Owner/Operator of D.I.C.E. Assessment & Employment Counselling Services Bachelor of Social Work Degree (Ryerson University). Career & Work Counsellor Diploma (George Brown College) Life Skills Coach Certification (Levels I & II) - YWCA

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