He addressed a recent presentation of the Canadian Pension and Benefits Institute, Atlantic Region, in St. John’s, titled “Marijuana in the Workplace” for employers.
“The message I was trying to bring to the group from a legal perspective is you treat (marijuana) no different than alcohol,” Smith said. “You would ban recreational use of marijuana or cannabis on the property as you ban alcohol. So an employer, you ban it. You say you ‘shall not, must not, and cannot have cannabis, like alcohol, on our site.’
“Where the challenge is, alcohol has certain very recognizable side-effects — the slurred speech, glassy eyes, esters (aromas carried in breath). What happens is that with those indicators, most employers are knowledgeable enough to say, ‘You’ve been drinking.’ The difficulty with recreational marijuana or medical marijuana is that it does not have a lot of triggering signs, signs that trigger to a supervisor or manager or owner that the individual has (taken marijuana and may be impaired). There are some signs — a change in personality; an employee who usually kept to himself on this day is jovial and chatty for no apparent reason, and they also got the munchies. However, these are quite unreliable, (and have) not been truly tested in the work environment.”
Smith said the objective is to find a way for an employer and employee to operate safely in the workplace, without any repercussions, when medical marijuana has been prescribed to an employee by a doctor.
He said the 10 nanograms per millilitre cutoff level recently established in a Toronto Superior Court case is the first legal determination in Canada of what the level of impairment for marijuana should be. The level of impairment is tested by taking a swab sample.
“The difficulty with the swab test in the employment field is that it takes upwards of four to six days to get an answer,” Smith said.
“You don’t know whether the individual is impaired because you have to send it away to have it analyzed. Meanwhile, what do you do with the employee who was just swab-tested for drugs? Most employers today would almost be required to release the employee from duty and pay him while their investigation is ongoing. A lot of collective agreements have that — during an investigation the individual can be sent home but he must be paid.”
In non-union situations as well, he said, there is a duty to treat the employee fairly until the results of the test are received and the investigation is completed.
But Smith said where employers have a duty to accommodate an employee who has been prescribed medical marijuana, there will be no duty to accommodate recreational marijuana users, any more than you would an employee who was drinking.
“I keep saying to employers, ‘Don’t panic, just ban (recreational marijuana). Now the challenge is setting up structures to test for it, to be able to determine impairment.”
Monday: Many ways to be impaired
