Union Matters Podcast #5: Weed & The Workplace

On this week’s episode of Union Matters, we sit down with labour lawyer Jill Houlihan to talk about a hot topic: weed and the workplace.

Since the legalization of cannabis four short weeks ago, many employees (and employers) have been left with unanswered questions about how use of the substance – recreationally and medicinally – may affect their employment. We try to answer a few of these questions with Jill this week!

See below for a full transcript of this week’s podcast:

Hi there, and welcome to this week’s episode of Union Matters, NSGEU’s Podcast.

I’m your host Holly Fraughton and I am joined here today by Jill Houlihan. Jill is partner of the law firm Pink Larkin, which specializes in labour and employment law, professional regulation, and pension and benefits law.

JH Thank you for having me

HF Our pleasure, Today we have invited you on to talk about a very hot topic, Legal Cannabis. I bet you guys have gotten quite a few calls about this issue lately.

JH We certainly have, yes.

HF So, since cannabis was legalized just a few weeks ago, workplace policies on it’s use are still kind of unclear for many people. Some employers, like the military, police, and airlines, have established rules for restricting cannabis consumption, even in an employee’s off time. So generally, are employers allowed to control whether employees use cannabis in their off time?

JH Generally speaking, no. They can’t control your use in your personal time per se. The question is always whether there is a connection to the workplace – whether or not there is a connection to your employer’s interests. So in the context of cannabis, what we’re looking at is whether or not you are impaired at the point when you are coming in to work.

HF Okay. So, kind of the same idea as if you use alcohol in your off time, you have to make sure that you’re not impaired by the time you come to work in the morning.

JH That’s right. Principally there’s no difference in that sense. Just as you say, you wouldn’t come to work impaired by alcohol, you shouldn’t come to work impaired by cannabis or any other substance, for that matter. The tricky issues with cannabis are that, we’re not quite sure how long impairment lasts. The general rule accepted by Health Canada is that if someone uses cannabis, they can expect to experience the effects of that for up to 24 hours. So that’s a pretty good benchmark. But there are also some studies to suggest that, especially for people who are regular users of cannabis, the effects can linger for quite a long time after the 24 hour period. So, that’s sort of where it gets into the fuzzy area. Because cannabis builds up in the system, if you are subject to testing, for example, if there’s an issue of alleged driving while under the influence and you’re tested, you may, if you’re a regular user of cannabis, have quite high levels of THC in your system, even though you may not have consumed cannabis within 24 hours.

HF Oh, that’s really interesting. So that’s probably on the police side of things, where it will be difficult to prove impairment for use.

JH That’s right, so impairment on the criminal side, police have tools at their disposal that they can use to prove impairment as such. Whether or not there’s a clear line between the levels of THC in someone’s system and impairment is a bit of an open question.

HF So for most employees, an employer doesn’t really have much say in their recreational cannabis use, but when it comes to the idea of impairment at work, perhaps, what can employer do if they suspect an employee is high at work or impaired at work?

JH Of course, this will always depend on the particular workplace and you can look at your collective agreement and what workplace policies you may have. Generally speaking, if the employer suspects that someone is intoxicated or under the influence of cannabis at work, you can expect that they are going to remove that person from the workplace initially, and that there will be an investigation. Whether or not they are entitled to send that employee for testing would depend on the rules in that workplace.

HF So it would depend on your collective agreement or what the HR policies was in your workplace depending on where you work and if you’re unionized or..

JH That’s right, so, as a general rule, employers are not allowed to impose random testing, except in some particular exceptions. And so what you’re looking at in that type of situation is, where there’s reasonable cause to believe that someone is impaired, there is law to suggest that in those cases the employer may be able to request that the employee may be tested. And whether or not that’s the case in your workplace, that’s the type of situation where you want to speak to your local rep or the union about that.

HF Interesting. And the other things you were talking about like people who would be subject to routine or random drug screening, those are people who work in more safety sensitive environments, generally. Like if your working with heavy equipment or

JH Random testing, in order for the employer to justify random testing, absence agreement with the union or some policy that’s in place that’s been agreed to, as a general principal, even in a safety sensitive workplace, even in workplace where there are very critical safety interests, like a mine or workplaces of that nature, even in those situation employers will generally only be entitled to implement random drug testing if there is a known problem in that workplace. So if there are known incidents of employees coming to work under the influence of drugs or alcohol, if there’s a history of that being a problem in that workplace and it’s a safety sensitive workplace, then the employer may be entitled to implement random testing, but just the fact that it’s a safety sensitive workplace would not ordinarily justify random drug testing.

HF Okay, it doesn’t make it inherent to that, excellent. So, it’s my understanding that for our civil service members, their employer has developed a fitness to work guideline, and a policy around impairing substances, which they plan to roll out soon, and there’ll be some educational pieces around that. What does that mean for the average civil service member? Wouldn’t they already have a policy in place about alcohol?

JH That’s right. Fitness to work is way of putting the onus back on the employee. So rather than adopting the type of policies you’ve seen in some police forces or the military where they’re setting a particular time limit, for example, that you can’t consume cannabis within a certain number of days. By establishing a fitness to work policy, then it’s up to the employee to make sure that, for you, you are coming to work in state where you are able to do your job and you’re not impaired. And so, yes, in terms of alcohol, I think we all understand what it means not to come to work under the influence of alcohol. In terms of cannabis, it is a little bit less clear, so for any particular person, whether they’re coming into work impaired by cannabis or not, how long ago they might have consumed cannabis, how much, what strain, and what method of consuming it, that can vary depending on the person in terms of the impact on that person, so for fitness to work, it’s a matter for each individual employee you have to make sure that whatever you’ve been doing, that at the point where you come to work you’re not impaired.

HF It sounds like there’s more variable with the consumption of cannabis versus alcohol, so it’s kind of knowing your own limit and knowing your response to it an being a good judge of that.

JH That’s right. And part of the issue is that with alcohol, because, of course it’s legal and been legal for a long time, there has been a lot of opportunities to study the impact of alcohol on people, and so there are pretty clear guidelines around blood alcohol limits and depending on a person’s size and how much alcohol they’ve consumed we can predict what the impact on that person will be. Because cannabis has been illegal, it’s been much more difficult to study the impacts on that. What you will probably see in the coming years you’ll see more clear guidelines people can use to educate themselves about if they’re using cannabis how they can expect the impact to effect them

HF Now we have very clear, for the police, for example, there’s blood alcohol levels and you can generally know rule-of-thumb how many drinks you can consume before you are considered to be impaired. So that will probably, in the years to come, as they develop clear science or clear studies on this issue, people will be able to better gauge that?

JH I think that’s right. The criminal code was amended as part of the legalization of cannabis this past June. There are new particular limits in terms of THC that you can have in your system for driving under the influence, so those offences start at 2 nanograms of THC per 1000 ml of blood. There are clear limits in that sense, but what’s not clear is at what point can you expect to have that level of THC in your system.

HF Yeah, for most people that doesn’t mean anything to them, so how do you evaluate that?

HF Can different government departments implement their own policies for safety sensitive positions. We talked about this a little earlier. Say, correctional officers or sheriffs. Could we see different areas implement different rules?

JH It always depends on the collective agreement, it depends on the nature of the workplace, but you can expect that employers are going to be entitled to demand different standards depending on the nature of the work that you’re doing. We always talk about when the employer is implementing a policy pursuant to its general management rights that any policies it implements have to be reasonable. Oftentimes you have a requirement in the collective agreement if there are going to be those types of policies that you have consultation with the union about those, that you have an opportunity to provide feedback on those and review those policies, but yes, as a general principle, if you are in a safety sensitive workplace, and that can range from situations where you are operating heavy equipment or something where there’s a very clear physical risk, but also you can look at health care, where people are working with patients and have to make sure that they’re able to provide care in a safe way, so yes, you can expect that there are going to be different standards in those types of workplaces.

HF That makes sense. From a legal perspective, for you guys, this must be an interesting time, for you. Have you heard any really interesting pieces of case law that are coming out of this, or that you think will develop out of this?

JH It is interesting. It’s a challenging time because there are so few clear standards, even in the law. So what we are seeing coming up to legalization and now you see a lot of different approaches. Even in labour law, you can pull arbitration decisions where one arbitrator has said you can expect that this person should be able to consume cannabis within a certain period of time of going to work and that’s okay, and then you look at another arbitration decision and the arbitrator’s come to the completely opposite conclusion. It’s challenging in that sense, it’s difficult to provide clear guidance to our clients in some ways because you’re saying we can’t say for certain how an arbitrator’s going to deal with some of these issues. A lot of that is going to play out over the coming years and we’ll see how things unfold.

HF There’s still some grey areas on the issue of cannabis use, for example, is there, or what is the difference between medicinal cannabis use versus recreational cannabis use as it pertains to the workplace and policies?

JH Medical cannabis use, the primary difference between that and the use of recreational cannabis, is that if you are using cannabis because of disabilities and you have a medical authorization for use then you have protection under the Human Rights Act. So if you are using marijuana in that context your employer has a duty to accommodate that use up to the point of undue hardship. So if you’re looking at situations, for example, where someone is regularly using medical cannabis, for example, perhaps are using in the evening in coming to work the next morning, that the employer has to take a much more careful look at that issue for that employee, so it wouldn’t be enough just to say “We’re instituting a blanket policy, you can’t consume cannabis 24 hours within coming to work.” they can’t do that with someone who’s using it for a disability. You have to look at that person’s individual circumstances and you have to assess whether or not you can accommodate that usage up to the point of undue hardship. There’s no such protections if it’s recreational cannabis.

HF That makes sense. So, the NSGEU represents a wide range of workers one of the groups that we represent are home care workers who go in to clients’ homes to provide care. So their work place is effectively someone else’s home. We have heard some concerns from these members mainly surrounding issues of second hand smoke and odor from clients using and growing plant in their homes. So our occupational health and safety person here raised the question “Does the smoke free workplaces act cover residences as it applies to cannabis?”

JH So the smoke free work places act does not apply to private residences. So even if that is in affect your workplace, those of private residences are expressly excluded from the legislation. So if it’s your own home you’re allowed to smoke cigarettes just as you’d be allowed to now smoke cannabis, but all that said, from an occupational health point of view, your employer has a duty to provide you with a safe workplace. And so if you are someone who has to go into other people’s homes as part of your job you can expect that if there are concerns around certainly second hand smoke that those are issues you should be raising with your supervisor, with your manager, and possibly with your union if you can’t find a satisfactory resolution, because for the most part it’s very unlikely that some of those concerns can’t be at least reduced, even if someone has to use of medical cannabis in their own home in even if they have to smoke that is part of the form of cannabis they’ve been authorized to use, it would be required to use it at the exact point when their home care worker is visiting them. You can request things like: that the person not consume it while you’re there; that other people in the home not consume it while you’re there; that the room be aired out as much as possible; those are the types of things that you could raise probably not directly with the client but through your supervisor, manager, or through the union to try to reduce any possible effects that you’re experiencing. And especially the concern in terms of cannabis around second hand smoke depending on the amount and the length of exposures it’s not clear whether or not that could actually result in you having TCH of some small level in your own system. If you’re driving and visiting clients and you’ve been exposed to second hand cannabis smoke you want to be careful about what position you are being put in.

HF That’s the interesting hadn’t considered that aspect of it. So basically the employer has a duty has a duty to help mitigate some of these concerns.

JH That’s exactly right.

HF Another question that’s come from home care workers is what they should do, if anything, if one of their clients is clearly breaking the law when it comes to cannabis. S if they went into client’s home and it was pre clear that there is a grow op of twenty plants instead of the legal four, should they report them, what should they do?

JH I would say that the concern and is really about your safety in the workplace and so if you have a client who is engaged in illegal activities that’s an issue that could potentially compromise your safety in dealing with the client and so that’s an issue that you should also bring to the attention of a supervisor or manager, or the Union because you don’t want to be put in a situation where you at in a home where there’s illegal activity going on. You have to be very careful of course around client confidentiality. I would say that it’s very unlikely that you would ever make the decision to report that directly to the police, for example, without raising it with your supervisor, manager, or union first, but I would say absolutely if you’re putting yourself in compromised position where you are either witnessing illegal activity going on, or the fact that there is illegal activity going on create some type of risk of potential violence or other types of ancillary concerns that those are things that absolutely management should be addressing.

HF That seems reasonable as well. So, if people have questions, if their workplace hasn’t instituted clear policies on recreational cannabis use and they still have questions about recreational cannabis and how it relates to their work, what’s the best thing for them to do?

JH I think it’s always a good idea to talk to your local rep or the union to see if there’s some advice that they can provide. Often times you can look at a policy and some aspects might not be clear to you but those might be issues that the union has actually addressed with the employer and might be able to fill you in on some of the background to those issues. Of course you can always raise those issues with a supervisor or manager. I can understand that some people may not want to flag themselves as someone who is possibly using cannabis even though it’s legal now there’s still a lot of kind of cultural barriers dealing with cannabis use that are still probably going to persist for some time. Absolutely that’s an issue that you can go to the Union and seek some advice out.

HF There is still a lot of stigma surrounding the use and there probably will be for a long time to come, but it is a good idea that people to be informed before they make decisions.

JH Absolutely.

HF That’s all I have for you, Jill. Is there anything else that you would like to mention or talk about?

JH I think that for the most part people can treat cannabis use the same way they treat alcohol or any other impairing drug. There, of course, has been a lot of attention on this issue because of the legalization, but for the most part if people have been going to work and not impaired in the past, you’re going to continue to be able to do that in future. It’s always important to educate yourself and make sure if there are new policies you’re aware of them. It’s also important not to become too nervous around the changes here because fundamentally it’s the same law.

HF I think we’ve even seen that in media reporting recently. All the statistics on impaired driving, regionally throughout Nova Scotia but also other parts of the country, police are saying that they’re not noticing a huge amount of change in impaired driving since October 17th.

JH That’s right. I think there’s still concerns around people with open cannabis in their vehicle in the way that alcohol is an issue and so there has to be some education around those issues but I think you’re right, I think the idea that people are now going to be consuming legal cannabis and driving in droves is certainly unlikely to happen and we’re seeing that that hasn’t happened yet.

HF That’s not the case, so far, at least. Well, Jill, thank you so much for joining us today we really appreciate your time. It’s been very interesting. So thank you again.

JH Thank you, my pleasure.

HF Maybe we’ll have you on again for another issue some time.

JH Hopefully so.