There has been a lot of buzz lately that the Trudeau government could introduce legislation this month that will legalize recreational marijuana use in Canada by July 2018.
For employers and stakeholders in the construction industry it's not the possible legalization that's the problem, it's how they are supposed to balance workplace safety versus human rights as well as judge impairment with a drug that is difficult to measure, said Barb Butler, president of Barbara Butler and Associates.
She gave a presentation on Legalizing Marijuana – Impact for Construction Employers at the Canadian Construction Association's (CCA) 99th annual conference in Mexico last month.
"We're never going to have an impairment standard for marijuana," she said. "How they (the government) think they are going to control this with legalization is beyond me."
Butler has been helping private businesses as well as governments, industry associations and labour organizations deal with alcohol and drug issues in the workplace since 1989.
She told attendees during her session that an employer coalition, organized by the Canadian Trucking Alliance, on marijuana legalization had been formed with numerous other stakeholders, including the CCA.
"This is a challenge for every industry across Canada and that's why we got the coalition together," she said.
"You are subject to vicarious liability or negligence if you let someone who you know is using do safety sensitive work,"
Barbara Butler and Associates
Representatives met and decided to send a joint letter to various federal and provincial government ministers calling for several measures to be put in place either before or at the same time the legislation is introduced. They also held meetings with the Prime Minister's Office as well as other federal departments.
According to a report submitted to the CCA by immediate past-chair Gilbert Brulotte, the measures include, identification of a national cut-off level similar to the "over .08" offence for alcohol with an acceptable roadside and workplace testing protocol; workplace alcohol and drug testing regulations that permit employers to test employees on a pre-employment, post-incident, reasonable cause and random basis; and clear and balanced rules setting out an employer's duty to accommodate employees who are under the influence of alcohol or drugs while at work and who suffer from substance abuse dependency.
"When the legislation is passed they need to have the right tools in place for employers and law enforcement to be able to deal with the new reality," explained Brulotte. "It's an employer's legal obligation to keep worksites safe, so the challenge there is that it's a federal rule that will legalize marijuana. So we're looking for a common platform across Canada in terms of what would be considered impairment, whatever that number is. Have an approved method of testing on the spot so that we're not caught with the human rights legislation arguing against workplace safety.
"We're hoping that there's sufficient collaboration and sufficient dialogue."
Butler said regardless of what the federal government decides, employers need to ensure they have an effective drug and alcohol policy in place, encompassing all substances.
"That's the foundation, that's what is going to help you," she said, adding prescription medication and medicinal marijuana use should also be taken into consideration. "Be very clear about expecting responsible medication use. Be clear that they're expected to use a safe alternative where available. Employees should be expected to consult with their physician or pharmacist regarding the side effects of any medication they are using, by explaining job functions. They should be advising you of any modified work they may need due to medication use."
"Either way you guys are going to have to decide if the employee can continue with their job, with work modifications, or if you can provide alternative work," she told attendees. "My view is there may be a duty to accommodate a medical condition but not necessarily their choice of medication if it's going to present a safety concern."
Butler said having an effective policy can also help those on the frontlines, such as supervisors and foremen.
"When I am doing training for supervisors, I'm saying you guys cannot turn a blind eye. We just need to be very proactive when it comes to this. Whether you're union or not, you're responsible for a work team. You have to act responsibly," she explained.
There are ways of dealing with an employee who an employer speculates is under the influence.
"You can't say to someone, 'you've got a drug problem, you've got an alcohol problem,' " she said. "Don't diagnose, deal with performance issues."
That said, not dealing with an issue can have serious ramifications, Butler added.
"Obviously there's a wide variety of legal issues you have to deal with. You are subject to vicarious liability or negligence if you let someone who you know is using do safety sensitive work," she said.
While the impacts on society and the workplace as a result of marijuana legalization are still uncertain, Butler said the key is finding a balance between prevention and deterrence when it comes to all substances.
"You've got high risk operations, so you want to have deterrence through communicating your standards and expectations. Reinforce you've got investigative tools and make sure your supervisors are using those, by investigating and making decisions on testing should it be required," she said. "Then having clear consequences which hopefully reinforce the importance of compliance and getting help when they need it before they violate the rules."