health & safety
miss that could have been significant; 2) The employer asks the
employee for an explanation before requiring the drug test; and 3)
There is some basis for the employer to need to rule out impair-ment
as a cause of the incident.
To summarize then: Employees cannot be impaired at work.
They cannot use cannabis openly at work, despite the fact that
it will be legal (subject to accommodation issues). And if the
employee is impaired, there may be testing which is allowable (in
YOU HAVE A POLICY FOR THAT
Employers have been addressing impairment at work for years.
The advent of recreational marijuana only means that the pol-icy
can no longer treat marijuana as an “illegal substance.” It does
not mean that employees are permitted to use it at work or that
they can show up to work impaired. This is a good opportunity for
employers to review and update their policies on drug and alco-hol
use in the workplace. The following provides some guidance:
While use is “legal,” prohibiting recreational use and possession
at the workplace is permissible, providing that the company has a
consistent approach to use and possession during work hours. For
example, does the company permit alcohol at lunch? After hours?
With clients? Consistency is important.
■■ Update policies regarding accommodation (with a clear
reference to rehabilitation processes, return to work, etc.).
■■ If there is a “testing” component, it should be fulsome with
details on the process (how the test will be conducted, privacy
and confidentiality and results).
■■ Update the policy on the disclosure of marijuana ues – and
any other narcotics – and highlight the requirement to disclose
the use of prescription drugs that might impact employee
performance or the ability to work safely. Specifically:
❚❚ Include a clear and express statement that the policy promotes
safety and deters unsafe behaviour.
❚❚ Encourage/require employees to disclose substance abuse
issues without fear of reprisal or discipline, including
situations where the employee may be using illicit drugs, but
may not consider their self to be addicted.
❚❚ Provide a process for employees to ask for and obtain treatment.
❚❚ Maintain confidentiality.
Clarifying both the duty to disclose and the prohibitions on use
and possession at work will go a long way in allowing an employer
to effectively deal with impairment at work. Remember, employ-ers
may still rely on the policy where there is a breach, including
the failure to disclose.
HANDLING IMPAIRMENT AT WORK
The biggest challenge for employers will be addressing possible
impairment at work. However, in many ways, this is no different than
how employers have been dealing with possible alcohol impairment.
Generally, if an employee exhibits signs of impairment at work,
they should be interviewed and if there is any concern about
impairment, sent home. They should not be allowed to drive and,
in most cases, not permitted to remain at work in an impaired
condition. Take notes from all other persons who interacted with
the employee, which should include specific questions about the
employee’s behaviour. Prior to any re-attendance, the employee
should be interviewed and asked about his/her intoxication/
impairment at work and, further, asked to provide an explana-tion.
During this period, an Employee Assistance Program should
be offered to the employee. If no explanation is offered (i.e., the
employee does not advise of any medical condition or addiction),
then determine if discipline is appropriate in the circumstances.
Assess all factors in coming to this conclusion. Above all else, do
not sacrifice the safety of the workplace to wait to remove the
employee. It is much better to be safe than sorry.
The legalization of cannabis won’t end the concern of employers
as it relates to this area. The important point is that they should
never take their eye off the goal of workplace safety. By having
effective policies in place, enforcing them consistently and mon-itoring
their workforce diligently, employers can not only avoid
legal liability, but work towards a safer workplace. n
Lorenzo Lisi is the leader of the Workplace Law Group at Aird
WHEN IT COMES TO RECREATIONAL
USE, WORKERS DO NOT HAVE THE
RIGHT TO BE IMPAIRED AT WORK OR
TO CONSUME MARIJUANA AT WORK.
A SIMPLE ANALOGY: ALCOHOL IS
LEGAL, BUT EMPLOYEES CANNOT
SHOW UP TO WORK INTOXICATED
OR DRINK WHILE ON THE JOB.
kuzma / 123RF Stock Photo
42 ❚ OCTOBER 2018 ❚ HR PROFESSIONAL