The legalization of recreational marijuana in Canada is one of the most significant policy changes in a lifetime, according to cannabis consultant Kathleen Thompson.

The changes are raising questions about how legalization will be dealt with in the workplace when it comes to issues including safety, drug testing and employees’ rights. The Saskatchewan Federation of Labour brought Thompson in to speak at its annual convention last month to help answer those questions.

She said a workplace that isn’t prepared for legalization could risk not retaining or gaining top employees and legal action over wrongful dismissals. She suggested recreational marijuana be treated like alcohol in the workplace.

“You wouldn’t bring alcohol to work. You wouldn’t drink at work. You wouldn’t share alcohol at work with your colleagues,” she told CTV News.

Drug Testing

An employee’s actions outside of work are private from their employer, but that could bring up complications when cannabis is legal, according to labour lawyer Gary Gainbridge.
“The main questions that I’m getting are what’s going to happen with testing in the workplace,” he said.

Employers of unionized staff that don’t work in a safety sensitive environment – like an office – don’t have the right to drug test employees. Bosses at safety sensitive workplaces – like a construction site – do. The majority of companies in Saskatchewan use urine tests, which are flawed, according to Bainbridge.

Urinalysis detects the waste product of THC – the psychoactive component in cannabis – not THC itself, and can pick up the use of marijuana 30 days after it was last consumed. Bainbridge said that can be problematic for employees who use marijuana on the weekend, for example, but have a positive test on Monday.

“It leads to questions by the employer and in many cases, unfortunately, assumptions by the employer that if there are these traces of THC in your system, you are in fact impaired on Monday,” Bainbridge said. “Therefore there’s going to be discipline consequences, which usually means dismissal.”

Bainbridge said some companies are moving to saliva testing, and suggests others do the same. Oral testing can detect THC within hours of use, but the waste product of THC is still visible in test results, which is causing employers concern.

“Until we kind of get that off of the test result, I think that we’re going to continue to see a lot of confusion in the workplace about what do we do with folks who test positive,” Bainbridge said.

Drug policies

Each company has its own drug and alcohol policy and many have similar THC limits that could result in dismissal.

A common workplace policy says someone who has four to five nanograms per millilitre of blood (in a saliva test sample), or 15 nanograms (in a urine test) are not fit for duty, which could trigger discipline. If an employee has an addiction, a company has the obligation to accommodate them with treatment options, according to Bainbridge.

Many are concerned that there’s no scientific basis to prove impairment based on THC levels and Bainbridge said he expects more wrongful dismissal cases to arise after marijuana is legalized.

“As we sort of hope and wait for the science to catch up there are ways for employees who find themselves in a position of having to explain away that Friday night joint on Monday morning,” Bainbridge explained.

He said there is costly medical evidence that an employee could obtain that would explain to a judge or arbitrator why a positive test doesn’t equal impairment.

Getting it right

A company that is prepared for legalization understands a positive drug test doesn’t always mean the employee is impaired and unfit for work, according to Bainbridge. Thompson said it also includes a company with a clear and consistent policy on marijuana.

“Those policies also include expectations about social time,” Thompson explained. “So it's laid out how you expect people to behave at staff parties, and that there's open dialogue about cannabis consumption.”

Medical Marijuana

Thompson encouraged employers to ensure there’s an open dialogue between management and staff about marijuana prescriptions, which have been legal for more than a decade. Employers have a duty to accommodate workers who are prescribed medicinal marijuana as long as they are fit for work.

Those in safety-sensitive work places can remain on the job as long as there’s communication with a doctor they are fit to work, according to Bainbridge.