A cannabis in the workplace discussion, sponsored by the Greater Vancouver Board of Trade, has identified some key concerns for businesses about the upcoming legalization of marijuana for recreational use. The discussion on Friday featured Solicitor General Mike Farnworth as keynote speaker and a panel of labour experts.
Legalization will normalize cannabis use, so education around impairment of all kinds will be a key concern for the trucking industry, said Dave Earle, CEO of the B.C. Trucking Association. Earle said the biggest issue for truckers has been accurately measuring impairment. “That’s the $64,000 question that everybody wants to know,” he said. “There’s no answer for that right now. We’ve got great technology that can break it down into exactly how much THC metabolite exists … but we don’t really understand very well how that relates to impairment.”
An eye on impairment
“Employers have the right to safe and productive employees, that’s the starting point,” said Michael R. Kilgallin, a partner at Roper Greyell LLP. But occupational health and safety regulations require that nobody comes to work impaired, and employers who turn a blind eye to impairment could find themselves criminally negligent, he said. Kilgallin cited a 2009 case in which an employer faced $750,000 in fines and a supervisor was sentenced to 3½ years in prison after overloaded scaffolding collapsed and four workers were killed, three of whom had cannabis in their systems. Even if the job isn’t safety-sensitive, employers could face harms such as lawsuits if a large transaction is mishandled or a deadline is missed by an impaired employee. “There’s no question that there’s a big obligation and a big risk for employers if they don’t treat this properly,” he said.
Cindy Zheng, a lawyer with McQuarrie Hunter LLP, said that when a worker is using a drug to treat a medical condition, employers have to be careful to accommodate that up to the point of “undue hardship” based on B.C. human rights legislation. In cases of substance dependency, Zheng said, “then employees have to act reasonably to accommodate, and often that means taking them off site so they’re not at risk to themselves and also employees in the vicinity (and) customers,” before helping them find appropriate rehabilitation to help them return to work.
Farnworth said employees who must cross into the U.S. as part of their work face a challenge because while states such as Washington have legalized recreational cannabis, the reality is that the border is under federal jurisdiction. “If they have to cross over, they may get asked questions and if they say, ‘Yes, I use it,’ — even recreationally — they may well not be able to cross the border,” Farnworth said. “Everything we have heard from the United States — the recent conversations I’ve had with the consul general a while back — they have zero interest in addressing that.”
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