What’s At Stake
Moral or immoral, legal or illegal, marijuana, aka cannabis, is an impairing drug that you don’t want your workers to ever use while they’re on the job. That’s why you probably have a zero tolerance policy for cannabis and other impairing substances. But how will you enforce that policy when cannabis is legalized by July 2018?
|HOW CANNABIS LEGALIZATION WILL WORK
On April 13, 2017, after decades of debate, the federal government decided to legalize cannabis for not only medical but recreational use. Final legislation is expected to be adopted by July 2018. And while legalization would be Canada-wide, each province and territory will have to adopt its own plan for regulating the cultivation, distribution and sale of marijuana within its own boundaries. Several provinces, including Alberta and Newfoundland have already proposed initial plans.
Even after legalization, you’ll still be able to keep workers from using cannabis in the workplace if you implement a legally sound substance abuse policy.
Adjusting Zero Tolerance for Legalized Cannabis
While sound in principle, the traditional zero tolerance policy that companies use to regulate workplace substance abuse is and has long been too inflexible to enforce. There are 2 legal problems zero tolerance doesn’t account for:
- Medical marijuana, which has been legal in Canada since 2001; and
- More significantly, addiction to drugs, which has long been recognized as a disability under discrimination laws.
Example: A BC glazier is fired for testing positive for cannabis. Although he violated the company’s zero tolerance policy, the glazier was using medical cannabis legally for chronic back pain. And because back pain is a disability under human rights law, the firing was disability discrimination and the company had to not only reinstate the glazier but pay him damages for injuring his “dignity” and “self-respect.”
Legalized recreational cannabis will pose a new limitation on zero tolerance policies. The good news is that the impact of that isn’t as great as some may believe. The key is that just as it is today, safety will continue to be the predominant consideration once cannabis is legalized. After all, while laws and moral may be subject to debate, the one thing about cannabis abuse that nobody disputes is that it renders workers unfit for duty and creates an intolerable safety danger, especially at safety-sensitive work sites.
The Bottom Line: Even after cannabis is legalized, you’ll still be allowed—in fact, required—to impose strict prohibitions on workplace cannabis use. But you’ll need to base the policy not on legality or even morality but strictly on safety. While you can still use the term “zero tolerance,” you may want to consider recasting your current substance abuse policy as a fitness for duty policy.
14 Things to Include in Your Policy
There are 14 things to include in your policy. Here are 14 things to include in your Model Fitness for Duty Policy. (Click here for a Model Policy based on the laws of your own jurisdiction Alberta, BC, Federal, Nova Scotia, Ontario, Quebec and General Version.)
- Policy Statement
Set the tone by stating that workplace substance abuse creates a safety risk and won’t be tolerated. But while laying the legal groundwork for discipline, you should also acknowledge that substance abuse is a health issue and that getting workers help is your ultimate goal [Model Policy, Sec. 1].
- Statement of Purpose
Clarify that the policy is all about ensuring workers are fit for duty at all times (as opposed to ensuring they act morally and obey the law) [Model Policy, Sec. 2].
- Scope of Policy
Explain that the policy applies to all individuals working for your organization regardless of employment status or physical location of the work. But also indicate that the policy is subject to the terms of applicable collective agreements and employment contracts [Model Policy, Sec. 3].
- Explanation of “Fit for Duty”
Define exactly what you mean by being fit for duty. Other key terms to define include “substance abuse,” “safety-sensitive job” and “drugs” [Model Policy, Sec. 4].
- Specification of Workers’ Duties
The heart of the policy is the list of worker requirements, including being fit for duty at all times, refraining from using, buying, selling or distributing drugs/alcohol, notifying supervisors of violations and submitting to testing [Model Policy, Sec. 5].
- No Exemption for Legal Cannabis Statement
Workers might assume that they’ll be allowed to use or be high on pot once cannabis is legalized. Debunk this popular misconception by expressly saying that impairment at work is never justified regardless of whether the cannabis or other substance that causes it is legal [Model Policy, Sec. 6].
- Statement of Support
Restate your commitment to helping workers with substance abuse issues and describe your organization’s employee assistance program and other resources for providing s support, counseling, treatment, rehab, etc. [Model Policy, Sec. 7].
- Encouragement for Self-Reporting
Encourage workers to come forward voluntarily if they have substance abuse issues; indicate that those who do self-report won’t be subject to discipline as long as they were and are fit for duty when they do their job [Model Policy, Sec. 8].
- Fitness for Duty Medical Assessments for Safety-Sensitive Jobs
Establish your right to perform proactive medical assessments before workers are assigned to safety-sensitive jobs and that failure to pass such assessments will be grounds for denying those positions. Indicate that assessments will be performed by qualified medical or substance abuse professionals and that you’ll keep the results confidential as required by privacy laws [Model Policy, Sec. 9].
- Investigation Procedures
Explain how you investigate suspected violations. List investigation triggers, which should include:
- Complaints, concerns or reports of substance abuse;
- Declining performance;
- Erratic behaviour;
- Involvement in safety incidents including near misses;
- Arrests for impaired driving, drug offences and similar violations; and
- Other indications of substance abuse issues or lack of fitness for duty.
[Model Policy, Sec. 10].
- Alcohol & Drug Testing Procedures
Explain your use of testing to enforce the policy. Testing is a complex issue that many organizations deal with in a separate policy. However you do it, be sure to address both the testing involved, i.e., alcohol and drugs, and the basis for each kind of testing, including:
- Pre-employment testing;
- Random testing; and
- For-cause testing, e.g., after safety infractions or incidents.
Be sure that your testing procedures aren’t overly privacy intrusive and that you limit the strictest testing to workers with safety-sensitive jobs [Model Policy, Sec. 11].
- Privacy of Test Results
Acknowledge that testing results are privacy-protected information that you’ll keep them secure and confidential to the extent allowed by the law [Model Policy, Sec. 12].
- Response to Violations
Make it clear that workers found to be unfit for duty will be subject to discipline up to and including termination. Describe your organization’s disciplinary procedures. Although zero tolerance is fine as a principle, you need to give yourself the flexibility to deal with each worker on an individual basis which typically includes entering into Last Chance agreements offering reemployment if the worker successfully completes treatment, rehab and other reinstatement conditions [Model Policy Secs. 13 and 14].
- Acknowledgment of Workers’ Accommodation Rights
Last but not least, include a provision acknowledging that addiction is a disability under human rights laws for which you’ll provide reasonable accommodations up to the point of undue hardship [Policy, Sec. 15].