Municipal: In a Haze - Legalized Marijuana and the Municipal Workplace

Recent developments in Canada have made it clear that marijuana is going to be a legal drug available to the general Canadian public. As a result of these developments, employers are in a position to consider what steps they should put into place to ensure that their workplaces are not subject to disruption or unsafe behaviour when marijuana is legalized.

This article will first cover the current state of marijuana in the law, reviewing two recent decisions involving medical marijuana in the workplace that show two counterbalancing scenarios. Although legalization will bring some changes, the recent federal task force has recommended that no changes occur with respect to the current medical marijuana regime, so that is expected to continue. Following the case studies, we’ll turn attention to recent developments and expected changes, followed by strategies for municipal employers to consider regarding the upcoming legalization.

In order to provide a road map of how employers should deal with a legalization of marijuana, it is useful to consider the current status of medical marijuana use and how medical marijuana factors into employment.

Marijuana is not an approved therapeutic drug in Canada. Medical marijuana is not the same as other proven prescription medications, which are made by pharmaceutical companies where dosages are specifically controlled in medication that is manufactured. Its effects may or may not be hazardous to work. Residue of medical marijuana can remain in a person’s system and be detectable for 30 days or more, but its presence in the body does not necessarily indicate impairment.

It is illegal to grow, possess, or use marijuana unless there is an exemption. Under section 56 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, the Minister of Jus
tice can exempt any person from the prohibitions on a controlled substance and the minister can impose terms and conditions deemed necessary for such exemption.

The Access to Cannabis for Medical Purposes Regulations, SOR/2016230 (ACMPR), under the Controlled Drugs and Substances Act, have applied since August 24, 2016. Under the ACMPR, a person must obtain a substantive prescription from a medical doctor for medical marijuana use with certain details being specified in it, and must either purchase the marijuana from a licensed producer, or receive a permit to grow limited amounts of cannabis products for their own use.

Obtaining a medical document is the first step in the process under the ACMPR for a person to become lawfully entitled to possess and use medical marijuana. The second step is the person registering with a licensed producer to be provided the medical marijuana, or with Health Canada to be able to produce a limited amount themselves. The third step is ordering the marijuana from the licensed producer and having it provided, or growing it themselves.

On demand, a medical marijuana user must provide a police officer with proof he or she is authorized to possess medical marijuana (ACMPR, section 15). This can be done by providing the registration document, a label from a licensed producer that provided the medical marijuana, a document sent with the supply of medical marijuana from the licensed producer, or a Health Canada designated person document.

The ACMPR creates conflicts between an employer’s obligation for safety, security, and risk management in the workplace, and reasonably accommodating a disability under human rights legislation. Recent decisions of an Alberta arbitrator and the British Columbia Human Rights Tribunal show the limits of medical marijuana use in the workplace.

In Calgary (City) v. CUPE, Local 37 (Hanmore Grievance), 2015 A.G.A.A. No. 43, the grievor had 20 years of experience with the city as an equipment operator. In 2009, the employee’s family doctor provided a declaration for medical marijuana. The employee obtained a permit from Health Canada to possess dried marijuana. He advised two supervisors that he used medical marijuana and the employee continued to work in his safety-sensitive position for about one year before upper management became aware he was using medical marijuana.

Once upper management found out, the city conducted an investigation and the grievor was removed from the equipment operator position and was accommodated in a non-safety sensitive position as a labourer. A grievance was filed by the union.

The employer’s investigation took about nine months and involved an independent medical examination. The city concluded the employee had a dependency and could not be returned to the safety-sensitive position of equipment operator.

The majority of the arbitration board found the employer requiring fitness for work for ensuring safety was rationally connected to performance of the job

The majority put significant weight on the fact that two supervisors who were made aware of the employee’s medical marijuana use and did nothing about it. The majority also indicated the marijuana use was not prejudicial to the protection of the employee or other employees in the workplace.

The arbitration board said nine months was too long to conclude the investigation by the employer. The employer’s investigation was flawed; the employee reported his medical marijuana use to his supervisors as was required by the city’s policies and was permitted to work without incident.

The grievor was out of the safety-sensitive equipment operator position for four years and the majority of the arbitration board reinstated him to his position with lost wages, overtime, pension benefits, and other workplace conditions.

In French v. Selkin Logging Ltd., 2015 BCHRT 101, the employee had about six months of service. He operated heavy equipment for a logging company. The employer had a zero tolerance policy for drugs in the workplace. The employee said he did not smoke marijuana for 10 years, but used it again after his cancer surgery in 2009. He had no medical authorization for using marijuana or Health Canada authorization to use marijuana.

The employee (French) usually smoked six to eight marijuana joints at work each day, sharing them with a fellow employee (Finlay) who was a casual user. There was no evidence of impairment. French smoked it in front of other employees. Other employees told the foreman about French smoking marijuana at work, but the foreman did not follow-up until there was an escalation of complaints and safety concerns.

French and Finlay hit a moose with the company truck and the mechanic found marijuana in the truck. The foreman conducted an investigation. French said he had permission from the B.C. Cancer Agency to use marijuana. The foreman reminded him of company’s safety obligations and the zero tolerance policy for drugs.

During the investigation by the foreman, French admitted to smoking marijuana at work and the foreman told him he could not do so. French said if he continued working, he would continue to smoke marijuana on the job. The company issued a termination letter, but indicated if French wanted to come back to work, it was to a drug-free workplace.

The employee filed a discrimination complaint based on physical disability.

The Tribunal noted that French’s doctors did not tell him to smoke marijuana, it was not prescribed for him, and he did not have an authorization to possess it for medical reasons.

Discrimination was found because French was disabled and used marijuana to manage pain. A bona fide occupational requirement was established by the employer. Having the zero tolerance policy for safety reasons was rationally connected to the job.

A general workplace rule that prohibits the consumption of alcohol, narcotics, or marijuana at work was within management’s rights. It was recognized that the duty to accommodate arises when an employee is using marijuana for medical purposes at work. The problem was that French was using an illegal substance at work, and he did not tell his employer he was using an impairing substance in the workplace.

Without the legal authorization to smoke marijuana at work, and without the medical authorization indicating it was safe for French to smoke marijuana at work, this amounted to an undue hardship on the employer in the reasonable accommodation of the disability. The complaint was dismissed.

The federal government tabled legislation regarding the legalization of marijuana in April 2017.1 The government is expected to legalize marijuana on July 1, 2018.

In late 2016, the Government of Canada released, “A Framework for the Legalization and Regulation of Cannabis in Canada: The Final Report of the Task Force on Cannabis Legalization and Regulation”2 (the report). The report covers a broad range of topics regarding considerations for the legalization of marijuana and makes 80 recommendations. It notes that the difficulty in determining impairment under marijuana makes it difficult to legislate for marijuana usage as it relates to workplace safety. However, it also notes that impaired workers are a problem, particularly in safety-sensitive industries such as transportation, health care, and law enforcement.

The report emphasizes that these issues are primarily dealt with by provincial occupational health and safety legislation and that any changes affecting workplace safety should be done in combination between the federal and provincial governments. The recommendations call for ongoing research on cannabis and impairment, and for employers and labour representatives to work together to facilitate the development of workplace impairment policies.

One of the underlying issues raised repeatedly throughout the report is the difficulty in determining impairment from marijuana. Despite stating that it was clear that cannabis impairs motor skills and judgment, the report recognized that the level of THC in bodily fluids cannot be used to reliably indicate the degree of impairment or crash risk. Unlike alcohol, the metabolites of marijuana remain in the brain and body of chronic users for lengthy periods of time beyond impairment.

What is clear from the federal report is that establishing policies to deal with marijuana use will be paramount with legalization. Employers have a legal responsibility to ensure a safe workplace. However, for positions that are not safety-sensitive, the employer may have to permit marijuana use, particularly if that use is tied to a human rights ground.

The most fundamental thing any municipality should consider is implementing or clarifying policies related to drug and alcohol use. Inflexible zero tolerance policies will likely risk violation of employers’ human rights obligations. Any such policy should include the following:
-clear guidelines of usage and possession;
-ensure that the employer is flexible to the employee’s human rights needs to the point of undue hardship; -differentiate between recreational use of drugs and dependency on drugs; and
-allow the employer to send the employee for drug testing or otherwise submit to an independent medical examination.

Adopting clear, enforceable policies is a centrepiece to any workplace strategy to deal with marijuana use. Any policy must balance human rights issues and the employee’s right to privacy. Once an employer has a clear, enforceable policy that has been clearly communicated and circulated among its employees, then that policy effectively becomes part of the contract of employment. Many employers, particularly municipalities, lack effective policies or their policies do not address fundamental issues, such as testing.

Municipalities should also keep apprised of any developments in testing for marijuana impairment, because any developments in that area will affect the scope and use of testing employers can do. Finally, municipalities may want to consider ensuring their human resources personnel have training in understanding the effects of marijuana use. As the legalization of marijuana progresses, it is an important opportunity for employers to consider and evaluate their workplace policies and practices in respect to drug use in general and marijuana in particular.

1 Kathleen Harris, “Liberals table bills to legalize pot, clamp down on impaired driving”, CBC News , April 13, 2017.
2 Health Canada (2016), “A Framework for the Legalization and Regulation of Cannabis in Canada: The Final Report of the Task Force on Cannabis Legalization and Regulation.”