Pubdate: Sat, 13 May 2017
Source: Telegram, The (CN NF)
Copyright: 2017 The Telegram
Author: Glen Whiffen
Page: A3


Expert says employers should treat recreational marijuana the same as
alcohol - it's a no-no at work

St. John's lawyer Harold Smith of Stewart McKelvey represents
employers in all aspects of labour relations, employment and
administration law, and as such has been helping employers adjust
their policies to incorporate the legalization of marijuana.

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

"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
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MAP posted-by: Matt