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Lawyer Denis Mahoney outlines a plan for employers surrounding the legalization of cannabis in Canada

Denis Mahoney, a partner with McInnes Cooper in St. John’s, speaks at the 50th anniversary conference of the Newfoundland and Labrador Construction Association on Friday.
Denis Mahoney, a partner with McInnes Cooper in St. John’s, speaks at the 50th anniversary conference of the Newfoundland and Labrador Construction Association on Friday. - Sam McNeish

How are employers going to deal with the use of cannabis in the workplace once it becomes legal later this year?

According to lawyer Denis Mahoney, a partner with McInnes Cooper in St. John’s, speaking to delegates at the 50th anniversary conference of the Newfoundland and Labrador Construction Association (NLCA) on Friday, there are many questions that need to be answered first.

“We are really concerned about this at the employers’ council because as I can tell you in our business today, the No. 1 issue we are working with clients on today, above all else, is this particular topic,” Mahoney said.

“Make sure you go back and look at your policy, because right now marijuana is listed as an illegal drug. You have to change its status and so therefore your policy is out of date. If you are treating it as under the current rules, it’s right for today, but come passing of that law, it is out of date,” he said.

Mahoney said there are a host of hoops for employers to jump through that could be contentious for everyone in terms of safety at the workplace dealing with an impaired colleague.

In addition, the steps that need to be taken to deal with that employee have a host of grey areas that make it difficult or practically impossible to sanction that person.

“I am asking the NLCA and the people sitting around this room, if you have a friend in government, anywhere where you can do some advocacy, this is an area where the legislation right now under our Occupational Health and Safety Act … the only thing that is in our legislation right now that touches on this issue has been there since I started practicing in health and safety, and it’s Section 26 of the regulations,” he said.
Mahoney said Section 26 deals with employees working with a medically documented mental impairment — something that can be applied to medically authorized marijuana.
The regulations have a relationship with medically authorized marijuana, and Mahoney says an employee cannot be assigned to work where it impairs the health and safety of that worker, and all parties should be talking more about that section right now and how it can be used to manage these cases.

“This is where I do think this is insufficient legal protection … the legislation does need to change, in my view. It says an employer, supervisor or worker shall not enter or remain on the premises, workplace or at a job site while his or her ability to perform work responsibilities is impaired by an intoxicating substance.”

Mahoney said he is concerned with Health Canada policies pertaining to a classification and use of marijuana.

“When you talk about contradictions in our country, Health Canada says that marijuana is not listed in Canada as a therapeutic drug. They are not satisfied that marijuana is an effective treatment for any medical condition in Canada, therefore it is not a recognized therapeutic drug on the list of drugs in Canada,” he said.
“But at the same time, guess who’s regulating the licensors and the producers of the medically authorized marijuana that physicians cannot allow a person to buy or grow themselves? … Health Canada.”

He added that even though it is not a recognized therapeutic drug, Health Canada is controlling the system that allows people to utilize it as a form of treatment.

“Since 2001, people in Canada have been prescribed medical marijuana. How many of you were dealing with this is 2005? Were you dealing with this in 2015, 2016, 2017? It was just starting to grow.

“So, you have got to have your policy ready and make sure you recognize in the same way that you talk about prescription drugs, that you need to put medically authorized marijuana in that category.”

Mahoney said the five main steps to use when looking at an employee who might be impaired include: observe, confirm, confront, test and document.

In addition, he said there needs to be some training done, as it is critical to know the processes that must be employed.

Experts with knowledge of marijuana should be used when drafting policies, he added.

Mahoney said he employed one of those experts to get some first-hand policy advise.
“My mother-in-law told me, just before Christmas, that with all her ailments, she went to her doctor and asked for medical marijuana and she got it like that,” he said, snapping his fingers.

“It’s just an indication to me how close to home it is. There are people in the audience that have people that are using medically authorized marijuana and some people are concerned about it because of the information I want to share with you about what is medicine in Canada and what is not, so I can give you the correct labelling of what medically authorized marijuana is.”

The incoming legislation is supposed to take effect in July 2018 and will target recreational users.
It is supposed to cover purchases from a retailer or federally licensed producer. Under the new legislation, people will be able to possess or carry 30 grams of marijuana in public, must be 18 years of age (19 in Newfoundland and Labrador) and can grow up to four plants, each no greater than one metre in height.

Making edibles will also be permissible.

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