Impaired on the job


NOW THAT RECREATIONAL CANNABIS has been legal in Canada since October, employers and safety experts have been taking stock of its effect on personnel at manufacturers’ establishments.

Not a problem? Think again. According to Statistics Canada, the number of new cannabis users is increasing.

During the first quarter of 2019, 646,000 cannabis users reported trying cannabis for the very first time. This number of first-time users was nearly double the corresponding estimate of 327,000 people one year earlier, when non-medical cannabis use was not yet legal.

The results come from National Cannabis Survey, which was designed to monitor cannabis consumption and related behaviours before and after legalization, has collected data every three months since February 2018.

One interesting indicator is that the increase in cannabis use between the first quarters of 2018 and 2019 can be partly explained by greater use among males and people aged 45 to 64. For example, rates of cannabis consumption for males increased from 16 to 22 percent over this period, while rates rose from 9 to 14 percent for everyone aged 45 to 64.

But is this new recreational strain of cannabis your father’s drug or even the drug of your youth?

Workplace Safety and Prevention Services (WSPS) is an organization based in of Mississauga, Ont., that serves 167,000 member firms and 4.1 million workers in Ontario’s manufacturing, agricultural and service sectors. According to Larry Masotti, director, Strategic Relationships, WSPS, “the surprise is that many of an older generation might think of the cannabis, marijuana, weed or whatever was around when they were growing up, but the reality is the THC or the Delta 9 Tetrahydrocannabinol is a much higher concentration than it was in the 1970s. The point is that it is a different drug today.”

Since about 5.3 million or 18 percent of Canadians aged 15 years and older reported using cannabis in the first three months of 2019, there is an almost one-in-five chance that a staff member might be impaired in any workplace. The problem for employers at wood shops and other businesses, is that THC remains in the human anatomy for close to 30 days but there is no conclusive method yet developed to test for impairment.

Black and McDonald is a Toronto, Ont.-based integrated, multi-trade prime contractor serving government, institutions, industry and commerce across Canada, U.S., and overseas with close to 6,000 employees. Ray Pleasance, corporate director of OHandS at the multinational, says his company has faced the issue of impairment head-on.

“It has required a collaborative approach with safety and our HR group to do several different things. We re-did our drug and alcohol policies. We brought in some guidelines as far as what we require and updated language with fitness for duty requirements — given that potentially we would have individuals coming to work and expecting to work when they may be impaired. Our main concern was the advent of now having marijuana legalized and also marijuana being prescribed through medical authorizations through doctors.”

As an employer, Black and McDonald has found the key component of any cannabis usage is that there are no defined levels of impairment. “There are no testing methodologies for levels of impairment or thresholds for levels of impairment as there is with alcohol as an example,” says Pleasance. The situation has created challenges for employees at his company as well. “They need to have a structure and a framework to be able to manage that potential hazard, so that it is presented to the employee to work safely.” There is also a potential impact of being impaired on fellow employees and clients, he adds.

The legal ramifications for companies dealing with potentially impaired workers are all too real. Junaid Malik, an associate in the Litigation Group at Brampton, Ont.- based Lawrences Lawyers, has been studying the issue.

“We treat medical and recreational as the same from the employers’ standpoint,” says Malik. “You might run into hurdles if you take it to an extreme and have a zero-tolerance policy. The issues you would face in that situation are employees who have a legitimate medical right to use it for their disability and if you would infringe upon their human rights.” (See Law column on page 16.)

With the impairment side-effects of recreational cannabis, however, Malik puts in a category, “More akin to alcohol. Just like drinking, the employer doesn’t have to know. You can have a bunch of beers. You can’t come to work drunk. That is going to be the same I think with recreational cannabis use.

“I think that employers should understand and amend their HR policies and progressive discipline policies to reflect that. I would also note that they should be cautious in their phrasing to ensure the distinction in medical and non-medical use.”

Workplace policies should distinguish between medical and recreational use, agrees Masotti, pointing out that medicinal cannabis was legalized in 2001 in Canada. “But a policy should address that difference.”

Masotti believes that employers should focus on impairment and the idea of being fit for work and/or duty since impairment can be caused by a lot of different things. “Yes cannabis,” says Masotti, “and yes, drugs — legal or otherwise — and yes, alcohol. But even things like gambling, fatigue, sleep deprivation or illness are all also impairment risks.

“I have had employers ask me that employees know that it is legal to use recreational cannabis — but were surprised to learn they had to tell them that you can’t do it in the workplace.

“You have to be deliberate in your communication with staff, regardless of the size of your business. You have to communicate that, and you have to have policies where there is some training available. Of course, it could be a training session, or it could be a five-minute safety talk at the beginning of a shift or a day.”

In the absence of impairment-level testing, enforcement of company policies becomes a problem. Black and McDonald is still proactive in any case and maintains particular vigilance around safety-sensitive roles.

“When we determine a role to be safety sensitive,” says Pleasance, “the only avenue that we have available to us at present is zero tolerance for any level of impairment. It is all written in our policies that if an individual is suspected of not having their full faculties and they are in a safety sensitive role, we would pull them aside and ask them specific questions.”

According to Pleasance, the company has removed some employees temporarily from their job functions because they had put themselves in jeopardy by compromising their fitness for duty. “The individuals had authorization to use medical marijuana at a fairly high strength,” he says.

“So, it does take a bit of research and understanding as to ‘what is an acceptable dose and what is not?’ The dosages in all of those cases would have rendered that employee to be impaired for a significant period of time. We asked them to go back to their doctors to see if there is an alternate treatment plan available to them. To this date we haven’t had a recreational cannabis issue pop up.”

Although this may be good news for one large company, there are even more challenges on the horizon. In October 2019, cannabis edibles and infused drinks will be legalized, according to the government of Canada. The obvious gotcha moment of someone smoking cannabis on the job won’t necessarily apply then.

“Not that we understand smoking cannabis well,” says Masotti, “it is the fastest way to feel the effect of the drug. Edibles will change a lot of that complexity because it depends on how quickly somebody metabolizes something and what they eat.”

What is good impairment policy?

Generally speaking, according to the Ontario Infrastructure Health and Safety Association, impairment is a state of reduced competence, or reduced physical or mental ability, which can lead to an injury, illness or incident. The Canadian Human Rights Commission describes the appearance of impairment at work as “odour of alcohol or drugs, glassy or red eyes, unsteady gait, slurring, poor coordination.”

1. Good impairment policy encourages a culture that prioritizes safety and allows for conversations about hazards like impairment.
2. It states clearly whether or not employees are allowed to use, possess, or be under the influence of certain substances while at work.
3. It is jointly developed by labour and management, including the Joint Health and Safety Committee.
4. It should specify the many sources of impairment, such as alcohol, medications (used legally or illegally), cannabis (recreational or therapeutic), any other substance, and conditions like fatigue or stress.
5. It ensures that all employees know and understand the definitions and sources of impairment.
6. It allows for education and training to be provided to all employees, including supervisors.
7. It defines the mechanism for reporting impairment and specifies how confidentiality will be maintained.
8. It gives employees the opportunity to declare if they feel they may be impaired and specifies that such a statement can be made in confidence and without fear of stigma or reprisal.
9. It includes prevention initiatives and employee support programs such as an Employee Assistance Program (EAP).
10. It states how disciplinary actions will be conducted when they are necessary.

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