To address the following issues and others as they impact the workplace:
- Skills and training
- Immigration policy
- Education vis-à-vis labour market needs
- Labour market information
- Labour mobility within Canada (including EI policies and accreditation)
- Employment of underutilized groups (e.g., older workers, youth, Aboriginal peoples, persons with disabilities)
- Recommend action / policy to the Canadian Chamber of Commerce
- Make submissions to appropriate government representatives
For further information or to join, contact Anne Peterson.
The issue: MARIJUANA AND THE WORKPLACE: WHAT’S NEEDED TO PREPARE FOR LEGALIZATION LEGISLATION
Drug impairment on the job is a complex challenge for employers at the best of times. With the pending legalization of recreational marijuana usage by the Federal government, employers are reviewing what they know and what they need to know to be prepared. With that purpose at the forefront, the recommendations arising encompass general and specific requests for clarity and guidance for employers large and small, unionized or not, hazardous or not.
A preliminary review of recent (within the past 5 years) and relevant (Canadian) literature (including peer reviewed academic literature) reveals three general foci: adolescent usage concerns, non-alcoholic drug-impaired driving, and accommodation for medical marijuana usage. Workplace research is minimal and tends to be reliant on case law findings arising from appealed dismissals. The recently released report of the Task Force on Cannabis legalization and Regulation, “A Framework for the Legalization and Regulation of Cannabis in Canada,” likewise concerns itself with adolescence and impaired drivers. The section on workplace safety is 1½ pages and from which, three of the Task Force 83 recommendations are relevant:
- Facilitate and monitor ongoing research on cannabis and impairment, considering implications for occupational health and safety policies,
2. Work with existing federal, provincial and territorial bodies to better understand potential occupational health and safety issues related to cannabis impairment, and
3. Work with provinces, territories, employers and labour representatives to facilitate the development of workplace impairment policies. (P. 29)
In B.C., both the B.C. Human Rights Code[i] and WorkSafe BC have bearing on employment guidance. In the Human Rights Code, there is no specific definition for impairment; however, Section 13 (1) states A person must not (b) discriminate against a person regarding employment or any term or condition of employment because of … physical or mental disability… ; nor can any person discriminate in regard to accommodation (Section 8) based on physical or mental disability without reasonable justification. This is relevant to marijuana usage as drug dependence (addiction) is considered a disability.[ii] Accommodation is required up to the point of undue hardship, where the cost of reasonable and practical steps are too difficult or expensive.[iii] The bar for employers to prove this is very high.[iv]
Worksafe BC provides some guidance[v]:
4.20 Impairment by alcohol, drug or other substance
(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.
(2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.
(3) A person must not remain at a workplace if the person’s behaviour is affected by alcohol, a drug or other substance so as to create an undue risk to workers, except where such a workplace has as one of its purposes the treatment or confinement of such persons.
Note: In the application of section 4.20, workers and employers need to consider the effects of prescription and non-prescription drugs, and fatigue, as potential sources of impairment. There is a need for disclosure of potential impairment from any source, and for adequate supervision of work to ensure reported or observed impairment is effectively managed.
While guidelines exist in various forms and templates for employers to use to develop onsite alcohol and substance use policies, and caveats are given in the literature regarding which ones would be better, what is lacking in all the literature is clarity in definitions and clear guidelines for employers.
There are two separate issues to consider: medical marijuana users and recreational usage on the job. For medical marijuana, the rules are quite clear regarding accommodation. Insofar as an employer can, those with appropriate medical documentation are accommodated and only actual impairment at work, not usage, would be grounds for further action up to dismissal. The challenge is determining what constitutes impairment.[vi] Under current Federal criminal law, the Marihuana for Medical Purposes Regulations (MMPRs), the required document, similar to a prescription, must
129. (1) A medical document provided by a health care practitioner to a person who is under their professional treatment must indicate
a) The practitioner’s given name, surname, profession, business address and telephone number, facsimile number and email address, if applicable, the province in which the practitioner is authorized to practise their profession and the number assigned by the province to that authorization;
b) The person’s given name, surname, and date of birth;
c) The address of the location at which the person consulted with the practitioner;
d) The daily quantity of dried marihuana to be used by the person, expressed in grams; and
e) The period of use.[vii]
For medical marijuana usage, therefore, the challenge for an employer is to determine whether the documentation and allowable amounts can lead to impairment up to the point, as expressed by WorkSafe BC, of undue risk. This does not address potential decreased productivity, the impact of usage and/or accommodation on other employees, and the overall costs of accommodation even if not up to point of undue hardship.
Recreational users (legalized or not) would be treated as other substance users and potential abusers, according to the literature.[viii] However, again, it is the level of impairment, rather than usage itself, that provides grounds for employer action up to and including dismissal. Key to whether employers have any sway, is the existence of written policies outlining a clear statement of drug usage on the job, the levels of graduated disciplinary steps, and an invitation for disclosure with accommodation considered. Recreational users may or may not be addicted – a determination that is difficult without self-disclosure; and addiction is considered a disability requiring accommodation. Until that point, an employer’s “duty to accommodate does not extend to the point of accommodating an employee that is not properly medically authorized.”[ix]
There are many guides and helpful suggestions available online. What is lacking, however, is clarity for employers along with guidance that provides assurance that the information by which they operate is best practice and in line with legislation in existence and anticipated.
SURREY BOARD OF TRADE RECOMMENDATION
In consideration of what is legally required and to ensure employers, particularly the small to medium sized operations that will not have the resources to easily access legal advice or human resource specialists, we recommend:
1. A regulatory authority be identified for which employers and employees can rely on for consistent information, updated regulations, and standardized forms and templates that are legally vetted to be sound; and that regulatory authority take the lead on devising
· a workable definition of impairment
· a universally applicable checklist that non-medically trained supervisors/managers can use to determine impairment, and
· a list of types of medical practitioners who are qualified to be signatories on such standardized medical forms
2. That regulatory authority so identified work with the Federal government to ensure consistency between Provincial and Federal regulations
3. Devise a standardized medical marijuana and/or cannabinoid form which would include (but not limited to), not only the required information as outlined above, but also the following (insofar as privacy laws apply):
· The frequency of usage in whatever form it takes
· The anticipated impairment, if any, of the employee while taking medical marijuana
· Anticipated duration of usage
· Acknowledgement by the practitioner of the employee’s occupation and what would be helpful or harmful for that individual AND those they work with up to considerations of potential injury to the individual and others, and
· Recommendations of accommodation that do not limit employer determinations, but can provide some guidance and awareness of the disability in question
4. That the three recommendations from the Task Force on Cannabis legalization and Regulation as noted above be strengthened in language substantially to include
· The authorized agencies identified to be part of the process of identifying occupational health and safety issues and subsequent policies
· Ensure that businesses and their representative associations, particularly chambers and boards of trade, be part of the process
· Identify a timeline by which issues and policies are worked by these authorities, and
· Ensure that the work is well underway, if not near completion, in conjunction with the implementation of the Federal legislation.
[i] BC Human Rights Code http://www.bclaws.ca/Recon/document/ID/freeside/00_96210_01 and http://www.bchrt.gov.bc.ca/human-rights-duties/index.htm
[ii] Lynch QC, Jennifer. Human Rights and Employer Responsibility to Accommodate Disability in the Workplace, Visions: BC’s mental Health and Addictions Journal, 2009, 5 (3), pp 9-10. http://www.heretohelp.bc.ca/visions/workplaces-vol5
[iv] Bhalloo, Shafik, and Alisha Parmar. Medical Marijuana in the Workplace—Don’t Weed Out Your Employees Just Yet! The Advocate. 74, 2016. Pp 687-696
[vi] Brown, Shelley. Road Map to Weed in the Workplace: legal Considerations as Legalization Approaches. Canadian HR Reporter; Oct 31, 2016. 29, 18 ProQuest. P.16
[vii] Bhalloo and Parmer, The Advocate. P.688
[viii] Brown, Road Map. P.16
[ix] Bhallo and Parmer, The Advocate. P.691
The issue: Labour Mobility across provinces in Canada
What it’s about: An Alberta accountant has a chance at a major promotion in the next province. But the accountant is married to a teacher, who would need additional courses to be certified in B.C. Does one spouse lose an opportunity, because the family has one income until the teacher re-certifies? After April 2009, it will not be an
issue in Alberta or B.C. After that date, people in the trades and professions can accept opportunities in the other province without a delay to re-certify, the time and expense of additional training, or a break in earnings. And employers in Alberta and B.C. can draw on the entire workforce of both provinces. This is the employment future in our two provinces under the most comprehensive free trade agreement in Canada. It could be your future, even if you do not live here. We believe our agreement is a model for the rest of Canada. Under the TILMA (Trade, Investment and Labour Mobility Agreement), a business registered in one province automatically is recognized in other provinces ⎯ no residency required, no added cost. Government procurement including professional services like accounting, engineering and architecture, is open to suppliers in both provinces, at lower thresholds. Commercial trucks need not be re-registered for temporary travel in the other province. Farmers will no longer have to restack their loads of hay at the border to comply with different transport regulations in the other province. Of interest, professional and trade certifications will be mutually recognized where scopes of practice are similar, and without undermining the authority of regulatory bodies. That means TILMA will be an open door to employment opportunities and choice.
What the Surrey Board of Trade did: Resolution supported by the Canadian Chamber of Commerce in 2008 to replace the Agreement on Internal Trade.
The result: TILMA was approved and includes the governments of BC, Alberta and Saskatchewan under this new Western Partnership Trade Agreement (2010). Ongoing watch for the rest of Canada – Provinces did meet and agreed to TILMA principles. More work to be done.