Legal pot raises corporate questions as firms fret over liability issues

Stoned employees are likely to become more common if Canada legalizes recreational pot next year. And the extra legal liability that will come with that is something employers need to nip in the bud, says a Halifax lawyer.

“There will be significantly increased usage and the active ingredient in marijuana has shot up over the years,” Brad Proctor, a partner at McInnes Cooper, said in an interview Wednesday. “Not only will more people use marijuana (if its recreational use is legalized next year), but you will see there will be higher levels of (Tetrahydrocannabinol).”

That drug, commonly called THC, is the ingredient in marijuana which gives users a euphoric feeling, or high. Three decades ago, the concentration of THC in marijuana was about three per cent of the weight of the pot. Today, that concentration is about 15 per cent for most marijuana and some licensed Canadian medical producers can churn out pot with THC levels in excess of 30 per cent.

With those higher levels of THC in pot and the likelihood of businesses marketing marijuana for recreational use if Canada makes it legal in July 2018, Proctor is expecting consumption to rise and users to get a much bigger buzz from pot than they would have only a few decades ago.

While many people still debate the wisdom of legalizing or prohibiting recreational marijuana use, one thing is certain: Companies that fail to put in place policies and strategies to deal with marijuana use and its effects in the workplace, are leaving themselves open to legal action should any of their impaired employees cause property damage or physical harm to people.

Wednesday, Proctor published Nip it in the Bud: A 5 Step Plan for Employers to Prepare for Cannabis Legalization on the McInnes Cooper website to help employers get ready for the likely legalization of recreational pot.

“Most workplaces that have safety-sensitive situations — think retail, construction, transportation, courier services, trucking companies, the fisheries and manufacturing — those employers would already have a policy in place that prohibits being impaired on illegal or legal substances and prescription medications,” said Proctor.

But there’s a snag.

Most existing policies define marijuana as an “illegal” substance. Legalize recreational pot and it no longer falls under that definition; the wording should be changed to put it in the same category as alcohol.

That then creates a Canadian corporate policy void for marijuana use, and opens up a potential minefield of litigation.

“(Business owners) have to go and look at their policies because marijuana would fall under the definition of illicit drugs,” said Proctor. “If they don’t change their policies, then (the courts) could say marijuana is not caught under that definition.”

His recommendation? Update your policy on marijuana use.

“If you’ve got a policy, you should take it off the shelf because it may not adequately protect you because of the way marijuana is defined,” said the expert in labour, employment and workplace safety law.

An up-to-date workplace policy on how to deal with employees who may be impaired due to marijuana usage is a first step.

The company then has to communicate that policy to all employees and train managers in proper procedures.

Unlike intoxication from alcohol, there is no legal limit for marijuana impairment in the Criminal Code. But that would still only apply to criminal cases.

When it comes to employment practices, the standard that has emerged through case law for drunkenness is half the level for criminal cases. And Proctor is confident a similar benchmark will be developed in common law for THC concentrations as well.

“I would say there is a standard emerging for THC in cannabis which is 10 nanograms per litre of blood,” he said.

Maybe so, maybe not. Since THC is fat soluble, it moves easily from the blood to the body’s fatty tissues, like the brain, which act like sponges. Margaret Haney, a Columbia University neurobiologist, said last year it’s difficult to document drugged driving because of THC’s very different absorption pattern compared to alcohol. Other researchers have noted THC leaves the blood so rapidly a person can be intoxicated and yet pass a drug test.

And then there’s the way in which the user consumes the marijuana. It makes a difference to drug tests, for example, whether the pot was smoked or eaten.

If the standard level for intoxication, as measured by taking a sample of the user’s saliva with a swab inside a cheek — the oral fluids swab test — does become defined as 10 nanograms of THC per litre of blood, then employers will have to put in place a policy to measure that intoxication.

Random drug testing in Canada has led to a series of court challenges, including one case involving Suncor Energy in Alberta that already has been appealed twice and is still before the Alberta Court of Appeal.

“When you talk about random drug testing in Canada, the law around that is evolving,” said Proctor. “The case law is uncertain as to whether we will be able to do that in Canada.”

He suggests employers instead only ask to test those employees they deem to be showing reasonable signs of impairment.

“You can do reasonable grounds testing. If you’re a construction worker and I, as a supervisor, deem you to be unfit for duty . . . then I can bring you in to do a short interview,” said Proctor. “The supervisor may then be satisfied but if that supervisor is not satisfied . . . then he can request a drug test.”

The employee could then either accept to be tested or refuse, but there could be consequences for refusing, including getting fired.

It’s important for employers who go this route to ensure they have an objective checklist of behaviours their supervisors can access to determine whether or not there are reasonable grounds for requesting the drug test. Proctor recommends two supervisors interview the employee and that each completes a separate assessment using the same objective criteria, to avoid subjective bias.

Using a predetermined checklist and having the assessments completed independently by two supervisors can help ensure the testing is not being demanded for improper reasons, including workplace harassment based on the employee’s sex or race.

The bottom line for employers is that they must be prepared to do their due diligence to avoid the potentially unpleasant and costly legal ramifications of their employees’ marijuana use.

“Accidents happen all the time and employers are prosecuted all the time and sometimes they are acquitted even if the accident happened at the workplace, because they did their due diligence,” said the lawyer.

In unionized workplaces, Proctor recommends preparing a draft of any policy dealing with marijuana use and intoxication and presenting it to union officials first for feedback.

“You give the union an advance copy of the policy and, if they receive it and if they don’t like it, they can file a grievance,” he said.

“There is no legal requirement to do that but it’s just a good business practice.”

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