Pubdate: Thu, 08 Jun 2017
Source: National Post (Canada)
Copyright: 2017 Canwest Publishing Inc.
Author: Sunny Freeman
Page: FP3


Legal wrangling looms, labour counsel predicts

A number of employers have expressed "grave concerns" about potential
spillover effects of legal marijuana in the workplace, a labour lawyer
said at a panel for employers on cannabis use Wednesday.

"There are a lot of employers across the country who are saying this
is going to be a groundswell of change in the way employees conduct
themselves in the workplace," Darryl Hiscocks of Torys LLP advised a
room of employers curious about the impact of marijuana legalization
expected a year from now.

He believes murkiness over marijuana use in the workplace will become
a legal battleground.

Cannabis in the workplace is nothing new: employers have had to
accommodate medical users since a court ruling in 2001, but experts
expect workplace incidents to increase once it's legal and as the
number of medical users grows.

Recreational pot will be subject to the same restrictions as alcohol:
just as an employee cannot show up drunk at work, they cannot show up

Though regulations have yet to be written for the Cannabis Act,
introduced in April, Canada's federal task force on marijuana
legalization highlighted the importance of "workplace safety" in its
report released in November. It noted that employers it consulted with
called for more guidance from governments about appropriate policies.

But employers are worried that they are receiving little guidance from
the federal government on how to enforce workplace safety under the
new regime, Hiscocks said.

"The federal government's response has been, 'You'll be fine,
nothing's changed, good luck."

There are a number of governance issues for workplaces to consider
when adopting policies, including provincial human rights codes and
collective agreements, under which employers might require the union's
consent to any policy changes.

Hiscocks believes that legalization will remove the stigma associated
with pot use and "employees are going to be much more open and in your
face about it," he said.

"But that doesn't mean the employee holds the trump

Employers still have the right to ask questions of employees and their
doctors when an employee shows up with a prescription to determine
whether they can be reasonably accommodated and whether doing so poses
health and safety risks, he said.

In Colorado and Washington, the first two states to legalize
marijuana, drug testing has shown an increase in positive results for
cannabis. Marijuana remains illegal at the federal level in the U.S
and employers can refuse to hire anyone who uses it, even if they have
a prescription.

Workplace drug testing is much more constrained in Canada and
employers are limited to testing after an incident or in workplaces
that have an enhanced safety risk or high prevalence of drug use, he

The Supreme Court of Canada ruled that employers can only conduct drug
tests in dangerous workplaces, if there is a history of abuse and
there is "reasonable" suspicion they are impaired on the job.

Unlike a breathalyzer for alcohol, there is no reliable test to
determine whether someone is high at the moment. Current tests can
only test whether someone has consumed in the past few weeks, leaving
many employers scrambling to determine how to proceed when they
suspect an employee is under the influence.

Savvy employers should be using the next year to review their policies
to determine if they adequately cover legal marijuana, said
Recreational pot in Canada will be subject to the same restrictions as
alcohol: just as an employee cannot show up drunk at work, they cannot
show up high.
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MAP posted-by: Matt