Written by Mark Coates, Managing Labour Relations Practitioner

 In this article:

1.  New Government Mandate
2. Steps to Legalization
3. What Changes Post-Legalization?
4. Managing Impairment
5. Will Testing Become More Effective?
6. Impact on Recruitment and Retention

  

Federal Government Stance on Marijuana Has Changed

 Canada’s federal government stance on marijuana took a big step in a new direction with the fall 2015 election.  The Liberal Party won a majority and their platform included a plan to “legalize, regulate and restrict access to marijuana.”  The government carried that campaign promise through to the first speech in parliament on December 4th stating that legalization was a priority.  Since then, Bill Blair, MP was announced as Parliamentary Secretary to Justice Minister in charge of Marijuana Legalization Review.  The momentum toward legalization continues.

 This has many employers wondering how quickly legalization could move if it remains a priority of the government and how quickly they will be required to manage the legal obligation to ensure safety in the workplace when the law also permits recreational use of marijuana.  

 This article will examine how far away legalization is in Canada and how it will change the workplace. 

Steps to Legalization

 How far away is legalization in Canada?  A realistic timeline is visible if you examine the necessary steps to full legalization.

 Drafting and implementing a legal and regulatory framework is not easy.  Since 2001 there have been several regulatory roll outs for medical use of marijuana and subsequent withdrawals of the regulations.  Health Canada issued a regime that has failed before the courts and been withdrawn in part.  This is instructive for timing as regulatory frameworks covering import, export, production, distribution, sale, retailing, consumption, advertising and taxation will be needed.   A recent example would be the Medical Marijuana Access Regulations (MMAR) which came into force in June 2013 and were repealed in March 2014.  A Federal Court Order granted a delay of a full repeal of the MMAR applicable to some registered medical marijuana users while courts resolved the legality of the repeal.  While it is good to know that regulations can be challenged in the courts in Canada, it demonstrates that issuing regulations is not always a straight path forward.  

 Also, the criminal code will need to be amended in light of legalization.  Decisions will need to be made on how to deal with anyone already charged, convicted or serving a prison sentence related to marijuana at the time legalization takes effect.  Other practical matters will include potential revision of anti-smoking laws and by-laws as many are worded specifically for tobacco smoke. 

  Consultation and relationships with provinces

 Regulating controlled substances like alcohol and medications is largely under provincial control and provincial leaders are already speaking publicly about how they see marijuana distribution, sale and taxation slotting into existing regulatory systems.  A roll out of access to marijuana that is negotiated and coordinated between various levels of government seems likely in Canada.  Avoiding overlapping and contradictory laws is likely to be one goal on the agenda for legalization in Canada but that will increase the amount of time it takes to agree upon and design a regulatory framework.  And each province will need time to develop and implement its own system. 

 International Obligations

 International treaty compliance is already an issue being flagged behind the scenes.  In a briefing note prepared for the newly elected Prime Minister, Justin Trudeau, Global Affairs Canada cautioned that all three of the following treaties require criminalization of possession and production of cannabis:

•  The Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol
• The Convention on Psychotropic Substances of 1971
• The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.  (The Canadian Press, January 5, 2016.)

 As the lead government department on international treaties, Global Affairs Canada advised it was too early to provide specifics on how treaty compliance could be maintained or whether treaty amendments were feasible.  Under these treaties all signatories have the right to propose amendments, exceptions or withdraw.  So a potentially more important issue on the international stage may be managing the relationship with the United States as legalization unfolds.  It is not clear how this would be managed by Canada’s Federal government, but one answer may be that the process to legalize will take several years and this time frame will allow American attitudes and laws to continue to shift.  A time may come where the gap between Canada and the United States on legalization becomes tolerable in terms of legality and optics.

 With these steps still ahead, it seems that legalization is a few years away in Canada, even if it continues as a government priority.  So rather than setting a hard date on the calendar, it is more helpful to be aware of the steps outlined on the road to legalization and to note announcements or news items on completion of these steps.  In terms of each of these steps it important to remember they work can progress simultaneously, if not publicly then at least in private and in consideration of options.  Counter to this, priorities may shift and legalization may slow down for political reasons.  Or unforeseen court decisions may send regulators back to the drawing board.  It may be closer to a decade before a stable system for regulating the production, distribution, sale, taxation and use of marijuana is in place.

 What changes after marijuana is legalized?

 Usage patterns

 Fears of a massive spike in usage due to easy access and lack of consequences are prevalent. But recent trends in Canada and in other jurisdictions that have legalized suggest this is inconclusive.

 In recent years in Canada, there has been significant decline in recreational marijuana use in youth (ages 15-24). The, “Did you use in the past year?” metric is down from 33% in 2008 to 20% in 2012. Over the same timeframe there was also a slight decline in the recreational marijuana use in the general population, down to 10.2% in 2012 from 11.4% in 2008 (CADUMS 2008-2012).

 This decline among youth usage in Canada may continue, based on evidence from other jurisdictions that have legalized.  While it is early in the legalization era in the United States, data so far suggests usage among adolescents is down slightly, continuing a downward trend that began a decade earlier.  In Portugal, where all drug possession was decriminalized in 2001 (and a larger data set therefore exists), there was no increase in adults attributable to decriminalization and youth consumption declined slightly.  What has been noted in Portugal is that adult usage also seemed to show a stronger relationship with usage in nearby countries where drugs were still illegal than it did with legalization within Portugal’s borders.  This indicates that caution is needed when looking at data for connections between legalization and usage.  There are likely other factors more important to usage rates than the legal status of the drugs.

 Addiction treatment burdens shift

 The elimination of legal consequences for drug possession in Portugal freed up government resources, some of which were re-directed towards treatment.  As a result, people in treatment increased 41% in the years after decriminalization.   After legalization and treatment have been in place for a few years Canada may see an overall reduction in rates of untreated addiction in the workforce and a reduction on the burden for employers to support workers needing addiction treatment.

 Detection challenges

 Another change that can be flagged from other jurisdictions is an increased variety of forms of marijuana, making it harder to identify and detect in the workplace.  It will be easier to conceal marijuana if it is odourless and appears to be something different such as a cookie, drink or candy.

Access to marijuana may be managed in a way quite similar to tobacco.  That is to say, it will be available in certain stores, with minimal signage stating what is available and plenty of age verification.  Tobacco also has a few speciality shops and there are likely to be variations on these for marijuana as there is already a connoisseur culture developed that is likely to continue and perhaps expand to small degree. 

 Impairment in a safety sensitive workplace

 Beyond concerns with possession in the workplace, impairment in a safety sensitive workplace remains top concern for employers.  A legalized drug no longer requires a prescription.  This means the guidance and individualized limitations of prescription would no longer be available to employers who are managing marijuana in the workplace.  Marijuana moves into the same category as alcohol – possession or sale in the workplace or use that results in on-duty impairment are prohibited.

 Familiar rules and tools still apply

 Some of the rules and tools for managing workplace impairment do not change with legalization:

•  You cannot report to work impaired or in violation of a safety risk-based work rule. 
• You cannot consume marijuana on duty. 
• You cannot possess marijuana at work, including products related to marijuana consumption, or products that may be used to tamper with a drug test.
• You cannot refuse a reasonable drug testing request.

 The need for training and ongoing awareness for the signs of impairment will also continue.  Reasonable suspicion of impairment is one of the primary ways to control associated risk but there remain serious limitations to reliance on peer-to-peer and front-line supervision intervention.

Will Testing Become More Effective?

 Drug testing for marijuana is an ongoing legal matter in Canada and a topic not to be fully explored here.

Advance consideration for what testing and the structure of work rules need to look like by that time could be helpful.  The fact that current testing practices (urine, oral fluid, hair and blood) confirm that marijuana is present and/or was consumed, not that the individual is currently impaired, will be a topic of debate. 

This presents a problem, particularly for impairment-based A&D work rule models absent hard cut-off levels.

 We believe research pertaining to chronic use and safety risk would be most beneficial to finding the balance.

 Consider a scenario where baseline cognitive function tests could be administered around the time of hire.  Then future tests would identify a reduction in cognitive function i.e., impairment.  

 A test (or series of tests) to establish baseline function and concurrent drug screening to confirm drugs were not consumed anytime near baseline testing would serve as reference point for any future tests post-incident, for site access testing or random testing. 

 As proposed in the Journal of Occupational and Environmental Medicine:

 

It is reasonable to consider neurocognitive testing of workers using marijuana, so long as limitations are understood.” Some tests “are generally not of clinical value, however, and have not been standardized for the workplace…Accepted clinical panels such as the Cambridge Neuropsychological Test Automated Battery (CANTAB, Cambridge Cognition, Oak Brook, Illinois) or the Montreal Cognitive Assessment may be useful, especially if a pre-treatment baseline is established. Clinicians must be aware of the limitations of any specific test, especially in the context of job requirements. (Medical Marijuana in the Workplace: Challenges and Management Options for Occupational Physicians, May 2015.)

 A failed drug test during the baseline period would be a reason to postpone baseline testing, with completion of baseline testing being a condition of employment.  In cases of site access a failed drug test can be grounds for termination for being unable to meet a condition of owner access requirements.  But most importantly in the case where the employer and the site owner are the same entity, a failed drug test would also be a failure to complete cognitive function testing and failing to meet a condition of employment.  The drug test itself would not be the reason for rejecting a potential worker, it would be that drugs in the system prevents accurate cognitive function testing.

 While impairment of cognitive function may not necessarily confirm drug use, it does confirm that the person tested cannot work safely.  This could conceivably result in someone being terminated due to early onset dementia.  In these cases, further assessment could confirm a medical cause, including addiction to the substances being consumed and causing impairment.  This opens a wider door of accommodation avenues as testing captures a greater variety of medical issues when cognitive function is assessed.  And employers may shutter at the unknown numbers of accommodations that may be required for all of the cognitively impaired members of the workforce.  However, impairment is a root cause of workplace incidents and eliminating it from the workplace, whatever the cause, makes everyone safer. Of note, those considering cognitive tests clearly do not hire and rehire the tens of thousands of Canadians in a manner that construction / maintenance employers do in a year.

There will be thresholds as to the administration that can be reasonable expended in safely mobilizing people to our industry.

 What is important to note is that there is currently no known cognitive test that has a scientific consensus on its validity for determining impairment and can be administered in a timely and cost effective manner.  Lack of medical support would bring a reversal of employer decisions based on the results through the legal process.  However, considering what the split of impairment testing from drugs present in the system shows that even if a valid test were available, it does not present a tidy solution.  

Impact on Recruitment and Retention

 When qualified workers are scarce will employers alter their policies or will employers with lax policies gain in market share?  An issue with comparable range already exists with alcohol policies for work camps. Some work camps are ‘dry’ and have strict no alcohol policies.  A less formal approach are companies with published policies of zero tolerance but only have strict controls in place for on-duty workers and public areas.  Other employers use or operate camps that offer after hours drinking options and (controlled) liquor sales. Could the range of policies for off-duty use of marijuana look similar?

 Policy and Enforcement

 Employers realize work camp policies can impact worker decisions on where to work.  Some employers may opt to establish a more open policy towards recreational use of marijuana but communicate the amount of time marijuana needs to be out of your system to eliminate a chance of direct impairment.  With legal marijuana, home drug testing kits will become a more widespread product.

 Culture Shift? 

 Will employers accept that workers use marijuana off duty, but manage timing to avoid workplace direct impairment?  Employers may not have a choice on the matter but they could be more open about employees using self-testing kits or building awareness on cut-off levels. 

Airlines and their pilots have lived by the “Eight hours bottle to throttle” motto for years. 

You may not find it in any policy, but supervisors and co-workers use it as a reminder to crew members overnighting on a hotel turnaround.  Might this type of framing of acceptable use develop for marijuana?

 For impairment-based A&D work rules, the above represents where the discussion will likely go. However, chronic use is known to affect peripheral vision, short term memory, and the ability to understand auditory commands.

We believe it is not too hard of a reach for stakeholders to continue to understand that a crane operator who cannot remember the toolbox talk he just participated in, does not have the peripheral vision required to both see where the boom is and where it is going, and cannot understand radio commands; might represent an increased safety risk.

For this reason, we strongly encourage safety-sensitive industries to retain or move towards, as the case may be, away from impairment-based A&D work rules to safety risk-based A&D work rules like the Canadian Model.

Hard cut-offs are required.

 There are personal views and workforce statistics on the lifestyle and productivity level of people who regularly use marijuana.  But could acceptance of marijuana users begin to resemble acceptance of tobacco smokers and alcohol drinkers?  We argue that ought not be the case for Canada’s safety-sensitive workplaces. However, while many do not approve of those choices, a degree of impact on productivity is implicitly accepted by employers as long as impairment or increased safety risk at work is work is not evident.  But it is not legal or socially acceptable to refuse to hire smokers or drinkers in Canada, only to ban their chosen habits from the workplace. 

The impairment effects of marijuana last longer that alcohol and impairment from casual use comes to an end as long as three days after use.

Does this not rule out use for those working on safety sensitive positions? 

Conclusion

To recap, the potential changes are:

• Increased use of addiction treatment and a shift of the burden of supporting treatment
• Harder to detect the presence of marijuana in the workplace
• The timeframes for legalization may be long enough for testing methods to improve
• Policies or enforcement may be under pressure to change  

And it is helpful to know what does not change because of legalization:

• Workplace rules and tools regarding impairment and management of safety-risk do not change
• An employer’s obligation to ensure workplace safety

 

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