12 THURSDAY, NOVEMBER 16, 2017
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IMPAIRMENT IN THE WORKPLACE CLEARING THE AIR ON LEGALIZED MARIJUANA
BY BOB ARMSTRONG
E mployers across Canada need to prepare for the potential of marijuana legalization to increase pot use on the job. And given the safety issues involved in working with and around heavy equipment, that goes double for the heavy construction industry. Jamie Jurczak, a lawyer with the firm Taylor McCaffrey LLP who specializes in workplace and human rights law, says now is the time to review or create a drug and alcohol policy that can protect both the safety and rights of workers. The obvious point on marijuana legalization is that, just because it may soon be legal to light up in your backyard that doesn’t mean you can do so at work. “This isn’t the first time we’ve dealt with an inebriating substance,” she says, noting that alcohol is already legal and the subject of workplace policies. “If marijuana is legal, does that give the employee the right to be high at work? No. The more safety sensitive a work environment is, the stronger stand an employer can take because the risks involved are significant.”
active ingredient in their systems to be impaired 24-7. Adding to the complexity of the issue is the strength of marijuana, which today may be three to five times as powerful as that of the 1960s and ’70s. Chronic users may exhibit “amotivational syndrome” – meaning they can’t get interested in or motivated by anything. And when heavy users go cold turkey – for example if a user goes to a construction camp where no marijuana is allowed – it can disrupt moods, appetite and sleep patterns. However, many users believe they can function under the influence of marijuana. Gervais has led at least a half dozen sessions for employers focusing on marijuana in the workplace, sometimes teaming up with Jurczak to present both an addictions and legal perspective on the issue. These sessions involve talking to managers about how to recognize signs and symptoms of use, because as Gervais notes “you may not be visibly high but you may have enough to be impaired.”
Addictions and training specialist Joel Gervais and Taylor McCaffrey LLP lawyer Jamie Jurczak (below), lead a workshop hosted by MHCA WORKSAFELY™. Photos by DARCY FINLEY
THE OBVIOUS POINT ON MARIJUANA LEGALIZATION IS THAT, JUST BECAUSE IT MAY SOON BE LEGAL TO LIGHT UP IN YOUR BACKYARD THAT DOESN’T MEAN YOU CAN DO SO AT WORK.
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However, if an employee is addicted to a substance, that’s a legally recognized disability. Simply firing an employee for being impaired may be a violation of the individual’s rights based on their disability. An employer has an obligation to accommodate a disability, notes Jurczak. That may mean removing the worker from a safety-sensitive position and giving them a chance to get help. However, the law does recognize that there is a point where further accommodation can cause undue hardship for an employer. “If there isn’t an addiction, you may be within your rights to take action so long as the employee knows that attending work impaired is not OK.” Court decisions continue to evolve as well, so that a workplace impairment policy needs to be prepared with an understanding of current law. That’s why a legal perspective on a policy is essential. “A properly drafted drug and alcohol policy is the most important tool for employers to deal with these issues,” says Jurczak. One of the issues making marijuana legalization complicated is what addictions and training specialist Joel Gervais refers to as the mythology around pot. Part of that mythology is the idea many users have that marijuana is less impairing or harmful than alcohol. But Gervais, who works with Vital Life, a part of the CBI Health Group, notes that it impairs decision making, coordination, depth perception and short-term memory. It is also stored in the body’s fat cells so that chronic heavy users may have enough of the
With legalization on the horizon, Gervais advises employers to take four key steps: • Re-evaluate their policy on substance use – or develop a policy if they don’t already have one – and ensure that it is reviewed by a lawyer. • Ensure that supervisors are trained both on how to recognize impairment and how to intervene. • Have a drug-testing program that allows for a third party to conduct a test if an employee is deemed to be under the influence at work. • Ensure that resources are available for employees who are struggling with substance use or addiction. “A drug and alcohol policy is not designed to be punitive,” he stresses. “It’s designed to be supportive.” Some employers are reluctant to intervene with employees’ substance abuse issues, Gervais says. “I’ve heard in the past that people would say, ‘He’s a good worker. So what if he comes in hungover or smokes a little pot on his break?’ ” But it’s important to realize that any impairment on the job is a safety issue. Some questions that drug and alcohol policies deal with will require additional research. As Gervais explains, we know fairly clearly what the impairing effects of alcohol are and at what point alcohol impairs ability and judgment. But because marijuana is stored in the fat cells, tiny traces can be detected long after an individual has consumed it. So some level of scientific guidance may be needed to determine what should be the cut-off level at which marijuana is considered to be impairing. ❱❱❱
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