MBiz

SPRING 2018 33 L awyer Jamie Jurczak, who specializes in workplace and human rights law at Taylor McCaffrey LLP, says cannabis is like other regulated substances, such as alcohol and tobacco. "But for some reason or other, some people seem to think that cannabis will be treated differently," she says. "It's not going to be a free-for-all. There will be possession limits, there will still be rules and laws put in place provincially about where you can and can't smoke it. Edibles are not being legalized right away." Jurczak and Safety Services Manitoba president and CEO Judy Murphy say employers should already have a drug and alcohol policy in place. If they don't, now is the time to establish one. And those who do have policies should update them. "We certainly have in our policy that there's no alcohol or, as it says in our policy now, illegal drugs. That will change to be specific to say no alcohol, cannabis or illegal drugs," Murphy says. While some employers are feeling anxious about the impending legalization, Murphy says they'll rest easier if they simply view cannabis as a workplace safety issue. "Employers have to maintain a safe workplace, and if they believe somebody is impaired they have to deal with it — and they have all the rights to put together a general policy to deal with that," Murphy says. She and Safety Services Manitoba director of occupational health and safety David Erl point out that there have been many opportunities over the past year for employers, HR specialists and safety professionals to attend conferences and workshops regarding cannabis legislation. "Manitoba in general has done a really good job of getting the word out there, and providing templates and leading practices," Erl says. "So we're taking those tools, we're educating ourselves and getting up to speed and relaying any up-to-date information back to our clients. They're feeling pretty confident and comfortable with the new legislation coming out." Erl notes that employers always have a duty to accommodate workers with medical disabilities, and those policies apply to medical marijuana, as well. "A prescription for medical marijuana doesn't entitle any employees to be impaired in the workplace." Jurczak says accommodation could mean adjusting hours, duties or working conditions, and employees should be made aware of policies surrounding any prescription medication and understand their own responsibilities. "Employees need to know that if they're taking a prescription substance that could (hamper) their ability to work safely, they may need to disclose, to advise their employer so accommodations can be put in place to ensure their safety and the safety of their co-workers and, depending on their job duty, potentially the safety of the public. And that if they don't disclose their legal drug use that could pose a problem," she says. Similarly, employers must ensure their accommodation policies with regard to addiction are in line with current laws, and make sure employees understand that if they are addicted, they should ask for help. They also have to spell out the potential consequences if an employee hides his or her drug use. "Getting some advice now before legalization of cannabis comes into effect is the best advice an employer can have, and of course making sure they understand what the laws allow and what they don't," she says. Jurczak says one major concern for employers is drug testing. The laws are in a constant state of flux, but the general rule is that random testing would not be permitted except in very limited circumstances. "If you're thinking you might fall into the limited circumstances, the safety-sensitive workplace where random testing would be allowed, definitely get legal advice," she says. However, Jurczak reminds employers who believe they need a test to prove an employee is using drugs that, unlike police, they are not going to have to prove something beyond a reasonable doubt. "Sometimes getting wrapped up in the issue of drug testing or how do we determine exactly what amount of a substance is there is missing the point of what … they would need to be dealing with within the workplace, which is were there signs of impairment, were there performance issues, was there a danger created by this employee's actions." She adds that a test that shows positive doesn't necessarily indicate the precise level of drugs in the system, when it was used, or if it would have an impairing affect. "I sometimes say to my clients or when I'm doing presentations, believe it or not … there are definitely people using cannabis right now that come to work every day and perform just fine. I can guarantee you they're out there," she says. "Whatever it is that they're doing on their private time, they're attending work and they are not exhibiting signs of impairment. They are not exhibiting performance issues and to the extent that that continues on with legalized cannabis, life will go on as normal for whoever those employees are." ■ "There are definitely people using cannabis right now that come to work every day and perform just fine. I can guarantee you they're out there..." CANNABIS IN THE WORKPLACE

• Cover