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In Safety the Federal Government might be thinking yes, but in the workplace and driving we are saying NO

As the Federal Government in Canada is still thinking WEED is good thing and we can tax the product. “In the grand scheme of things, I don’t think this is really going to change the landscape that much in terms of the law in the workplace,”. Companies are realizing the dangers of allowing workers onto a site while they are under the influence of illicit drugs. The statistics show that when there is drug use in the workplace there are more Workers’ Compensation claims, greater employee turnover, more absenteeism, higher rates of employee theft, and a greater chance of workplace violence.

And yes the POLICE and INDUSTRY have tools to measure the impairment

Police across Canada will be testing three saliva-based roadside devices on suspected drug-impaired drivers after a team of scientists studied how they detect the presence of drugs such as marijuana.

The next step, before any of the devices can be approved in Canada, is for police officers to test them in the field in various jurisdictions, adding that a representative from the Justice Department attends their committee meetings.

“Such devices can aid in the identification and apprehension of drug-impaired drivers and are becoming increasingly commercially available and are currently being used in other countries,” the force said in a statement.

Officers using the device at the roadside would ask drivers to stick out their tongues as a sample of saliva is taken with an instrument similar to a tongue depressor.

Currently, police who suspect drug-impaired driving use a standard sobriety test that includes looking at a driver’s eyes and asking the person to walk and turn and stand on one leg.

Suspected drivers can also be examined by a specially trained police officer called a drug recognition expert and be given a blood test. A drug-screening device would be another tool in an officer’s arsenal, with saliva test results available in about five minutes,.

At least two other devices developed in Canada to detect THC, the main psychoactive ingredient in pot, test a suspected driver’s breath, the same as breathalyzers for alcohol, but neither has been tested by police.

“This technology’s been around for decades. It’s been used in Europe for around 10 years and it’s worked well. It’s been used in Australia as well. They’re well ahead of where Canada is.”

 

Marijuana is prohibited under the Controlled Drugs and Substances Act. P bar Y Safety said he expects legal marijuana to be regulated much the same way alcohol is today, meaning employers will retain “relatively broad” powers to make drug testing a condition of employment — as they have with liquor for years.

The BALANCING ACT in Law and Safety and Labour Force in Canada

Duty to accommodate

Human rights legislation dictates that employers cannot discriminate against an employee or applicant who has a disability.

If your worker cannot perform their job safely given the medication they are using, there is still a duty to accommodate up to undue hardship.

Your company may be required to move the employee to a position that is not safety-sensitive, or, if that is not possible, place the employee on leave until they can safely return to work.

If modified work is appropriate, employers should reserve the right to confirm the nature and duration of the work restrictions with the worker’s physician.

Much like other medical drugs, a prescription for marijuana does not give the employee a green light to use it in the workplace. Both the employee and employer are subject to certain obligations with regards to the use of medical marijuana in the workplace. In order for both employers and employees to properly understand their rights and responsibilities, and to avoid unnecessary litigation, it is important to identify the various ways that the use of medical marijuana impacts the employer-employee relationship.

Medical marijuana engages the same principles of accommodation as any other doctor prescribed drug. An employee’s need to consume medical marijuana triggers an employer’s statutory obligations. Section 5.1 of the Code mandates that an individual has the right to equal treatment with respect to their employment without discrimination on the grounds of “disability”. Employees may be prescribed medical marijuana to cope with a number of conditions such as arthritis, cancer, chronic pain, or sleeping disorders.

The Code imposes a duty on employers to accommodate employees’ disabilities to the point of “undue hardship”. There are three different factors when determining whether or not the request for accommodation meets the threshold of undue hardship to the employer. First, the court looks to the cost of accommodation. Second, the court looks to whether or not there is any outside funding to help subsidize the costs of accommodation. Third, and perhaps most pertinent to medical marijuana, the court looks to any health and safety concerns the accommodation may pose. While second-hand smoke may pose a hazard to other employees, the employer would have to demonstrate that the individual could not be isolated, or that the issuance of a vaporizer would bring undue hardship to the employer. To date, no employer has been able to successfully establish undue hardship based on the health and safety risks posed by marijuana.

In order to appropriately gauge the employee’s capacity to continue to perform their job safely, the employer should request medical documentation from the employee that speaks to the ability to safely carry out assigned duties. If the inquiry discloses a meaningful impairment in the employee’s capacity to carry out their job, then the employer is not necessarily required to accommodate the employee’s request to use medical marijuana, particularly where the position involves the use of safety-sensitive equipment. Employees in safety-sensitive positions must inform their employers if they are going to be using medical marijuana.

The employer’s obligation to accommodate does not end when a meaningful impairment of the employee’s ability to perform their current job becomes apparent. The employer will likely be obligated to accommodate the employee in other ways such as allowing the employee a leave of absence while undergoing marijuana treatment, or providing the employee with alternative forms of work that do not engage safety concerns. Employers should be wary that termination of an employee, without first asking whether the medication the employee was taking was affecting job performance, will likely be found to be inappropriate. It is important for employers to understand that they have a broad obligation to investigate and make efforts to accommodate employees using prescription medications, including medical marijuana.

Despite developing clear and transparent policies regarding the use of medical marijuana in the workplace, employers often wish to subject employees to drug testing to ensure compliance. The restrictions on the employer’s power to conduct these investigations, though, is worthy of exploration.

First, the onus lies on the employer to demonstrate reasonable cause to subject the employee to drug testing. The employer must be able to point to evidence sufficient to form a reasonable opinion that the employee is impaired. It is important for employers to note that the smell of marijuana, independent of any other indications that the employee is under the influence of marijuana, is not a reasonable basis for dismissal of the employee, even where the employee occupies a safety sensitive-position. Evidence of a general problem with marijuana or other drug abuse in the workplace, for instance, may be sufficient to subject employees to random drug testing.

However, the employer is granted greater leeway in subjecting employees to drug testing in certain prescribed circumstances, alleviating them of the burden to establish reasonable cause. For instance, drug testing can be mandated after an incident, as a requirement of an agreed upon rehabilitation program, or as a precondition to employment, promotion or transfer.

Also, employers may not necessarily be allowed to draw adverse inferences from an employee’s refusal to submit to a drug test. Drawing such inferences could amount to discriminating against the employee. However, where the employer had reasonable grounds for requesting the test, the drawing of an adverse inference will not likely be held to be discriminatory. Again, the onus lies on the employer to establish reasonable cause to test the employee, then shifts to the employee to refute that evidence by subjecting themself to a drug test.

However, there are significant practical issues related to tests administered randomly and after a workplace accident, which already require more stringent legal justifications, such as a reasonable suspicion of intoxication. The most significant of these is the standard urinalysis test, which can detect the presence of marijuana but not prove impairment, P bar Y Safety said.

“Practically speaking, employers may have a struggle in dealing with the difficulty in proving impairment for marijuana as compared to alcohol,” he said.

While marijuana can remain the body for days or weeks after use, making proof of intoxication difficult to obtain, he doesn’t expect major changes.

“I don’t believe it will really affect any of the current testing procedures, because even if you think of a typical prescription medication … whether or not it’s a legal or an illegal substance, it could still have the potential to be a safety concern on the jobsite,”.

“Those in favour of testing argue that mandatory drug and alcohol testing promotes safety and security in the workplace,” “Opponents, on the other hand, say that mandatory testing violates privacy rights without reasonable grounds and can lead to discrimination on the basis of an actual or perceived disability.”

Terry Penney

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