10 Things HR Directors Must Know to Ensure Workplace Safety in the Legal Cannabis Era

November 16, 2018 11:53 am

On October 17, 2018, Canada became only the second country to legalize recreational cannabis. (Uruguay is the other.) Impairment of workers has made cannabis a perennial headache for employers. Keeping workers off the weed will become even tougher in the era of legalization. In the past months, HRI has made a concerted effort to explain the challenges HR directors face, outline practical strategies and provide TOOLS you can use to implement them. This summary is an attempt to boil it all down to 10 key takeaways and link you to the relevant HRI resources.

  1. Basis for Regulating Drug Use Is Impairment, Not Zero Tolerance

While the morality and prudence of legalizing cannabis is subject to debate, one thing nobody disputes is that cannabis use impairs workers and endangers workplace safety. Accordingly, the legal basis for banning drugs and alcohol at work, legal or illegal, should be impairment and fitness for duty rather than legality, morality or zero tolerance. (HRI Resources: The 14 Things to Include in a Fitness for Duty Policy;  How to Create Fitness for Duty PolicyModel Substance Abuse & Fitness for Duty Policy)

  1. Proactive Assistance Works Better than Reactive Discipline

The traditional strategy for dealing with workplace drug use is discipline. While it can still work, discipline is highly contentious and tricky to justify on legal grounds.  That’s why some employers take the approach of treating drug use not as a rules infraction but a personal problem calling for assistance and support. They call on workers to disclose their substance problems voluntarily and on a non-disciplinary basis. In addition to proving effective, this approach was recently upheld by the Canadian Supreme Court.  (HRI Resources: Discussion of Elk Valley caseAsking Employees to Disclose Impairing Prescription Drug Use)

  1. Drug Testing Is the Pivot Point

Testing remains the most effective means of enforcing anti-drug policies. Unfortunately, it’s also a lightning rod for legal challenge because it’s so invasive of workers’ privacy rights. Accordingly, drug testing litigation has served as the breeding ground for most of the rules governing the balance between an employer’s interest in ensuring a safe workplace and workers’ interest in keeping their bodily fluids and personal secrets away from the boss. (HRI Resources: 8 Things about Drug Testing that HR Directors Need to KnowLegal Scorecard summarizing over 2 decades worth of drug testing litigation)

  1. Random Testing Is Almost Never Allowed

Random testing is the most intrusive because it’s done without suspicion. As a result, it’s also the toughest to justify as a safety measure. Recent cases have made it clear that the mere fact that a workplace is dangerous isn’t enough; the employer must also prove that the safety problem stems specifically from workers’ use of drugs in the workplace. And even that may not be enough if, as some courts have, a court finds that privacy outweighs safety. (HRI Resources: 12 Things to Include in Your Drug/Alcohol Testing PolicyModel Drugs & Alcohol Testing Policy)

  1. Post-Incident Testing Easier to Justify but Still No Slam Dunk

Unions and courts have looked more favorably on testing workers after they’ve been involved in a workplace accident, especially if their job is safety-sensitive. Even so, post-incident testing can be shot down if employers abuse it by testing after any and all incidents even if there’s no indication that the worker’s drug use caused or contributed to the incident. (HRI Resources: Analysis of When Post-Incident Test Is OKPost-Incident Drugs & Alcohol Testing Procedure)

  1. Pre-Assignment/Employment Testing Is the Easiest to Justify

It’s generally OK to test workers before hiring or assigning them to a safety-sensitive position, e.g., promoting a maintenance worker to a heavy machine operator. (HRI Resources: How to Create a Drug/Alcohol Testing PolicyModel Drugs & Alcohol Testing Policy)

  1. Recreational Cannabis Isn’t the Same Thing as Medical Cannabis

The Oct. 17 legalization applies to recreational cannabis; medical cannabis for treatment of specific conditions with a doctor’s authorization has been legal for about a decade. While it may be the same product, the legal rules are vastly different for medical uses. (HRI Resources: The 6 Things HR Directors Need to Know about Cannabis LegalizationLegal Scorecard Summary of Medical Cannabis Termination Cases)

  1. You May Have to Accommodate Medical Cannabis

Medical cannabis use is protected by human rights laws. Explanation: Under human rights laws, employers can’t discriminate and must make accommodations for disabled workers and job applicants to the point of undue hardship. Because medical cannabis is used to treat conditions deemed disabilities under the law, tolerating a worker’s use may be one of the accommodations you have to make. The good news is that letting a worker use or be impaired by medical pot at work is universally recognized as an undue hardship that no employer need accept. (HRI Resources: Analysis of Employer Duty to Accommodate Medical Cannabis4 Medical Cannabis Accommodations You Don’t Have to MakeModel Medical Cannabis Accommodations Policy)

  1. You Don’t Have to Accommodate Recreational Cannabis

Drug addiction or dependency is a disability subject to accommodations; recreational use is not. (HRI Resources: Analysis of Employer Duty to Accommodate Medical Cannabis4 Medical Cannabis Accommodations You Don’t Have to MakeModel Medical Cannabis Accommodations Policy)

  1. The 2 Questions to Ask before Dishing Out Discipline

If a worker tests positive for marijuana, you need to determine if accommodations are required before deciding what to do. Specifically, you shouldn’t impose discipline unless and until you verify that the use was purely recreational and that the worker:

  • Doesn’t have a drug addiction or dependency; or
  • Didn’t use the medically to treat a disabling illness or condition.