Fitness for Duty ? Marijuana in the Workplace (OGCA) Norm Keith, - - PowerPoint PPT Presentation

Norm Keith, LL.M., CRSP Partner

Fitness for Duty? Marijuana in the Workplace (OGCA)

1

Agenda

• 1. Legal Status
• 2. Workplace Safety
• 3. Impairment
• 4. Testing
• 5. Duty to Accommodate
• 6. Fitness for Duty Policy

2

Medical

Access to Cannabis for Medical Purposes Regulations

Recreational

Federal Cannabis Act Ontario Cannabis Control Act and Smoke-Free Ontario Act

Other

Ontario Occupational Health and Safety Act Ontario Human Rights Code

3

Recreational

• Decriminalized October 17, 2018 under Bill C-

45, the Cannabis Act

• If over the age of 18: can buy, possess, grow,

and use cannabis recreationally

• Provincial regulations and restrictions apply to

distribution and workplace health and safety

4

Medicinal

• Already legal under the federal Access to

Cannabis for Medical Purposes Regulations

• These Regulations will remain unchanged

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Medicinal Use

• Who may possess marijuana:
• 1. For one's own medical purposes or for those of

another individual for whom one is responsible;

• 2. A health care practitioner for their practice;
• 3. A hospital employee for their work;
• 4. A licensed producer; and,
• 5. A licensed dealer

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Criminal Code of Canada

• Bill C-46, Impaired Driving Act amended the Criminal

Code on June 21, 2018 to create new offences:

• Summary offence: 2 - 5 ng of THC per ml of blood
• Hybrid offences:
• > 5 ng of THC per ml of blood
• 50 mg of alcohol per 100 ml blood and 2.5 ng or more of

THC per 1 ml of blood

• Penalties from $1,000 fine to 120 days imprisonment

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Ontario Cannabis Control Act, 2017

• In force October 17, 2018
• Sets legal age at 19
• Prohibits use of cannabis in a vehicle or boat
• Prohibits operating a vehicle or boat with open packages
• Penalties range from $1,000-5,000 (for consumption) to

$100,000 and imprisonment for a year (distribution or transportation)

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Smoke-Free Ontario Act, 2017

• Prohibits smoking or holding lighted medical cannabis

in an enclosed workplace

• Requires employers to ensure the above does not
• ccur
• Prohibits those in a motor vehicle from smoking

medical cannabis, having lighted medical cannabis, or using or having an electronic cigarette containing medical cannabis

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Ontario Highway Traffic Act

• Prohibits novice and young drivers from having drugs in

their bodies

• Penalties include fines up to $500 and license

suspensions

• Imposes an administrative license suspension for up to

90 days and vehicle impoundment on drivers who test positive for drugs while driving

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Provincial Regulations

Province/Territory Age Limit Sales Method Home Grow Limit Possession Limit Alberta 18 Private 4 30g British Columbia 19 Government/Private 4 30g Manitoba 19 Private 30g New Brunswick 19 Private 4 30g (must lock away marijuana when it is in the home) Newfoundland and Labrador 19 Government/Private 4 30g North West Territories 19 Government 4 30g Nova Scotia 19 Government 4 30g Nunavut 19 Government 4 30g Ontario 19 Government/Private 4 30g Prince Edward Island 19 Government 4 30g Quebec 18 Government Up to 150g at home; 30g on a person Saskatchewan 19 Private 4 30g Yukon 19 Private 4 30g 11

Provincial Regulations

Province/Territory Where Cannabis May be Smoked Alberta Where tobacco is permitted British Columbia Where tobacco is permitted Manitoba Restricted in all public places New Brunswick Restricted in all public places. Newfoundland and Labrador Private property and home North West Territories Private property and at home. On trails, highways, roads, and streets, and in parks when not in use for public events Nova Scotia Where tobacco is permitted Nunavut Limited public use Ontario Where tobacco is permitted Prince Edward Island Private property and at home Quebec Where tobacco is permitted, except on university and CEGEP grounds Saskatchewan Restricted in public spaces and around minors Yukon Private property and at home 12

• 2. Workplace

Safety

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Canadian Tobacco, Alcohol and Drugs Survey

• “Over 44% have used cannabis in their lifetime,

and over 12% have used it in the past year.” (2015)

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Occupational Health & Safety

• Employer duties under OHS laws to ensure a safe

workplace.

• Workers have a duty to work safely.
• Legal duty to take reasonable steps to prevent bodily

harm under Criminal Code.

• Legal liability, prosecutions & fines for failure to comply

with legal duties.

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OGCA

• “It is our experience that the abuse of

substances is a growing issue with our workplaces, and the legalization of cannabis will significantly increase usage, leading to a spike in workplace injury and fatalities.”

Letter from Ontario General Contractors Association to Attorney General of Ontario, July 31, 2017

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3. Impairment/Under the Influence

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Determining Impairment

• Case-by-case basis
• Observation of employee
• Discussion
• Completion of simple job-specific tasks
• Not conclusive of drug consumption
• Not diagnosing substance use but identifying

impairment

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Indicators of Substance Use

Physical

• Sweating, headaches, tremors, cramps,

restlessness, odour of alcohol, slurred speech, unsteady gait, glassy eyes Psychosocial

• Confusion, memory lapses,

inappropriate responses/behaviours, lack of focus/concentration Workplace Performance

• Forgetfulness, deterioration in

performance

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Indicators of Marijuana Use

• Depends on various factors

Short term effects

• Forgetfulness
• Decreased concentration
• Slower reaction times
• Distortion of sensory perception and

cognition

• Impairment of motor skills
• Increased appetite
• Dilated pupils
• Red eyes

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Responding to Suspected Impairment

• Priority is safety for all
• Action with empathy and respect for privacy

Examples of Corrective Action

• Speaking privately
• Changing tasks
• Progressive disciplinary

action

• Removal from workplace

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Police Procedure for Impaired Driving

• Drug Expert (DRE) uses a 12-step test for impairment
• If officer has reasonable grounds, they may demand:
• Perform prescribed physical coordination tests
• Provide samples of a bodily substance to be analyzed by

means of approved drug screening equipment.

• Federal government approved new saliva test for the

purposes of criminal enforcement

• Q: might provinces do something similar for workplaces?

22

Amalgamated Transit Union, Local 113 v TTC, 2017 Court Decision:

• “The policy provides oral fluid drug test cut off levels as follows: marijuana

10 ng/mL (nanograms per milliliter)”

• “… By selecting a cut-off that limits the detection window to approximately 4

hours, the TTC Policy reasonably ensures that only employees who are most likely acutely intoxicated due to recent consumption of marijuana will test positive.”

• “Because cannabis impairs cognitive and motor abilities and because oral

fluid testing at the TTC cut-off levels identifies recent use of cannabis (i.e. within approximately 4 hours of being tested), I conclude that oral fluid testing for cannabis at the TTC cut-off level will detect persons whose cognitive and motor abilities are likely impaired at the time of testing.”

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• 4. Testing

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Legislative Background

• Not legally required in Canada
• No comprehensive testing legislation
• Rely on employment, privacy, human rights, and labour

case law in each jurisdiction

• Right to test is limited and subject to challenge

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Types of Testing

• Pre-employment
• Reasonable Cause
• Post Incident
• Random
• Rehabilitation

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Pre-Employment Testing

• It has also been upheld in some safety-sensitive

positions but not all

• Generally more defensible where:
• Testing is done after a conditional offer of employment;
• No automatic withdrawal of the offer if positive test;
• Industry evidence of drug or alcohol-related issues;
• Recent drug or alcohol-related issues at the company;
• The position is safety critical; and,
• There are no less invasive means.

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Reasonable Cause

• Generally permissible for safety sensitive

positions/workplaces

• Reasonable cause exists where you have made

personal observations of appearance, behaviours, speech and/or odours that are consistent with drug

• r alcohol use (e.g., slurring, odour on breath)
• Observe, confirm, document, discuss, and if

necessary test

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Post Incident

• Generally permissible for safety sensitive positions after

a significant accident/near miss

• There must be a reasonable investigation into the

incident

• Testing must be based on a connection between the

incident and the employee

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Return to Work

• Generally permissible for safety sensitive

positions/workplaces as part of a return to work after a policy violation or after rehabilitation

• May be unannounced and random for a reasonable

period of time where reasonable to believe alcohol and drugs could have impact

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Random

• Permissible only in very narrow circumstances
• Requires evidence of enhanced safety risks,

and/or a general problem with substance abuse in the workplace

• Expected safety gains must be real and

substantial

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Safety-Sensitive Position

• No statutory definition in OHSA
• Case-by-case determination
• Supervision not determinative
• Objective test looking at all facts of position, including:
• Duties
• Responsibilities
• Tools and equipment
• Materials handled, etc.

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• 5. Duty to

Accommodate

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Marijuana and Human Rights

• Human rights laws prohibit discrimination on actual/perceived

disability

• Medical marijuana may be a treatment for a disability
• Drug addiction may also be a disability
• Employers have a duty to accommodate a worker’s disability

up to the point of undue hardship

34

L & L Painting and Decorating Ltd.

• Atchison was a painter on a platform 37 floors above

the ground on the outside of a building

• He treated chronic pain with marijuana
• He had no employer or doctor authorization to smoke

cannabis at work

• He was terminated for smoking marijuana at work
• The Human Rights Tribunal upheld the termination and

the employer’s zero-tolerance policy

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• 6. OGCA – Fitness for Duty

Policy

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What is Fit for Duty?

• When a worker is able to safely perform assigned

duties without any limitations resulting from, but not limited to the use or after-effects of drugs, alcohol, and/or medications.

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Elements - Fit for Duty Policy

• 1. Policy Statement
• 2. Application
• 3. Definitions
• 4. Objectives
• 5. Responsibilities
• 6. Company Standards
• 7. Prevention, Assistance and Rehabilitation

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Elements - Fit for Duty Policy

• 8. Investigation
• 9. Alcohol and Drug Testing
• 10. Medical Cannabis or Marijuana
• 11. Policy Violations
• 12. Confidentiality
• 13. Communication
• 14. Interpretation

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Responsibilities - Fit for Duty Policy

• All workers share the responsibility for maintaining a

safe and product, alcohol and drug-free workplace.

• Workers have the responsibility to report to work

capable of performing their tasks productively, safety and physically fit to perform assigned task.

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Objectives - Fit for Duty Policy

• Ensure that all workers are fit for duty on each and

every occasion that they are required to work

• Eliminate incidents related to the use and/or misuse of

drugs, alcohol, cannabis, prescription medications and

• ther substances
• Ensure a fair and consistent approach in the

enforcement of the policy while maintaining dignity and respect for the individual

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Objectives - Fit for Duty Policy

• Provide workers with the opportunity to discuss

substance abuse issues without fear of discipline or retaliation before safety is jeopardized or comprised

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Commercial Drivers - Fit for Duty Policy

• Drivers with an A-F class license and vehicles that

required a CVOR are prohibited from having any presence of alcohol, cannabis or any other drug in their system.

• If police determine there is a presence of cannabis,

alcohol or any substance, i.e. illegal drugs or prescription drugs, drivers may face severe consequences and potential criminal charges.

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Professional Assistance - Fit for Duty Policy

• A worker who is unable to comply with this policy

should seek assistance from human resources, their supervisor or manager or a medical professional

• A worker who believes they have a substance

dependency should seek treatment before their job performance is affect or they violate this policy

44

Alcohol and Drug Testing - Fit for Duty Policy

• Drug and alcohol testing may be considered if there are

reasonable grounds to believe a worker is under the influence or if there has been a Significant Incident affecting persons and/or property damage

• If a worker is returning from a Rehabilitation Program,

testing may be required as a condition of continued employment.

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Medical Cannabis - Fit for Duty Policy

• If prescribed and has the potential to adversely affect a

worker’s fitness for duty, the supervisor or manager must be advised immediately

• Workers may be required to provide Proof of Authorization

for the use of medical cannabis

• Continuation of employment in a safety sensitive position

while using medical cannabis will be subject to the requirement for safety and fitness for duty and be determined by the Company in consultation with medical advisors.

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Policy Violations - Fit for Duty Policy

• Consequences will depend on the nature of the

violation

• Consequences may include:
• Temporary removal from the worker’s position
• Placement in another position; modified/restricted duties
• Medical assessment
• Referral to treatment or aftercare program
• Termination for cause

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Questions?

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Norm Keith, LL.M., CRSP

• Partner
• O. 416 868 7824
• M. 416 540 3435
• nkeith@fasken.com