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Cannabis in the workplace

The Antigonish Chamber of Commerce hosted a Q&A event in December, where members of the business community were given the opportunity to pick the brains of several legal, labour and human rights experts, with various questions about cannabis and the workplace.
The Antigonish Chamber of Commerce hosted a Q&A event in December, where members of the business community were given the opportunity to pick the brains of several legal, labour and human rights experts, with various questions about cannabis and the workplace. - Sam Macdonald

Cannabis and the workplace; it’s something of an elephant in the room with Canada recently legalizing marijuana.
The Antigonish Chamber of Commerce, savvy of that, decided to sort through the curiosity, gathering members of the Antigonish business community and a panel of four experts, to talk about cannabis in the workplace.

Julie MacPhee, a lawyer with Mac, Mac & Mac, a New Glasgow law firm, Kymberly Franklin, a solicitor with the Nova Scotia Human Rights Commission, Starla Sheppard, a labour standards officer with the Nova Scotia Labour Standards Division and Paula Dobson, an occupational health and safety officer with the Nova Scotia Occupational Health and Safety Division, spoke to local business people at the People’s Place library.

The Nov. 28 event functioned as a Q&A session for guests. Many of the questions asked and conversations that ensued, were about dealing with cannabis use and company policy, while making accommodations, often for employees’ medical needs

“What is the landscape when hiring employees?” one guest asked, curious about what they were allowed to do, when it comes to screening for cannabis in employees. “Does privacy override an employer’s right to create a safe workplace? Are you allowed to [screen] in Nova Scotia?”

Specifically, the guest referred to how employers in places like the oil patch in northern Alberta are allowed to screen employees for drug use.
Franklin said it varies in Nova Scotia, as opposed to the firm, zero-tolerance policies in the Albertan oil patch.

“If you don’t have a policy, it’s going to be very difficult to justify [drug] testing,” Franklin said. “With the hiring process, you want to be incredibly careful. It also depends on the job. If I’m hiring a truck driver, I can certainly ask someone, ‘are you physically able to operate a vehicle safely?’ I’d get clearance from a doctor for that person, saying they are fit to work.”

Franklin noted the difference between recreational and medicinal marijuana has to be considered by employees, since recreational cannabis has significantly more THC – the active high-inducing ingredient – than medicinal cannabis.

MacPhee also responded to the first question, noting employers have a duty to accommodate employee needs.

MacPhee referenced a case where an employer hired a man, but he failed a drug screening test, because he takes 1.5 grams of medical marijuana, every evening, to deal with chronic health problems.

“His doctor said it would not leave him impaired [the following] morning when he goes to work. The employer said, ‘I don’t know about that, we don’t think we can accommodate him because he’s impaired.’ He went to the arbitrator, and the arbitrator said that if he’s taking that much in a safety-sensitive environment, we can’t trust he won’t be impaired.
“If he is working in an office, it would be different,” MacPhee said, noting that the security issues with an office job are not the same as someone using heavy equipment.

On the subject of consumption of cannabis at the workplace, MacPhee said it’s important for employers to not make snap decisions on such matters. Accommodation of employees’ needs is vital, she noted.
“Make sure you ask questions and don’t make decisions based on stereotypes. Get information,” MacPhee said.

As far as rules are concerned about cannabis consumption in the workplace, MacPhee said employers can set those but need to work to accommodate employees who use it medicinally.
Franklin said, “it’s not a human right to consume cannabis, but human rights come in when it’s medical marijuana.”

Another topic of discussion that stemmed from the first question – employees with addictions.
MacPhee said one employer she is working with has a policy where employees are expected to disclose an addiction. If an employee gets in an accident, and they don’t disclose their addiction, they will be terminated.
“You shouldn’t have to figure out what’s wrong with someone. The obligation is on employees,” Franklin said. “If you have an addiction you have to speak up. You can’t wait until after the fact. We’ve turned down complaints for that reason.”

Shephard noted the type of job matters, as well. “From the labour standards perspective, the type of job matters. There’s a difference if someone who has worked 20 years in an office shows up a bit high versus someone driving a truck and smoking a joint.”

When enforcing any sort of policy about cannabis, Franklin said it’s important to enforce a policy uniformly across all employees, since enforcing policy inconsistently may lead to employees alleging discrimination.

Another guest asked what sort of timeline exists with human rights complaints relating to labour.

“It could be resolved that day, that week or two years down the road,” Franklin said.

Cases vary a great deal, depending on the nature of the complaint, the amount of evidence and the number of witnesses.

“Most cases don’t take that long. It will take a number of months, if you have one that goes all the way through the process of the board,” Franklin said. “Once you’re at the board enquiry stage, you have to deal with schedules of lawyers and the board chair.”

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