The number of current cannabis users who have consumed cannabis before and during work is alarming and should not be taken lightly by employers, says Ryan Mallough, director of provincial affairs, Ontario for the Canadian Federation of Independent Business (CFIB). “500,000 Canadians is not nothing,” says Mallough. “It is an issue that employers should be aware of.”

What do the numbers say?

His comments follow the release earlier this month of a Statistics Canada survey, which found that half a million respondents said they have consumed cannabis before or during work (based on combined data from Q4 2018 and Q1 2019). Two-thirds of the estimated 514,000 individuals reported they do so on a daily basis.

This is the first survey conducted by Statistics Canada that measures the number of people who have consumed the drug before or during work. The survey did not ask respondents to specify if they consumed for recreational or medicinal purposes.

Although cannabis has been legal in Canada since October, employers reserve the right to restrict their employees from consuming recreational cannabis during or before work. Those in safety-sensitive positions, such as pilots or bus drivers, are generally barred from being impaired on the job.

For Mallough, workplace health and safety should be top of mind when employers are considering the cannabis habits of their employees. “If you believe somebody has taken cannabis, particularly if they’re in a safety-sensitive position, the best thing you can do is remove them from that position,” he suggests. “You don’t want someone who you believe is impaired getting behind the wheel or operating heavy machinery.”

Toronto-based lawyer Daniel Walker agrees that cannabis-related impairment could present serious health and safety risks. “It’s not just about minimizing risk to yourself. It’s also about minimizing risk to the business and to the general public,” says Walker, a partner at Bobila-Walker Law, which has founded The Cannabis Law Group.

“Cannabis has not received the same designation as cigarettes; it’s received the same designation as alcohol,” he says. “Just like you wouldn’t drink 10 shots of vodka and go into work, you probably wouldn’t want to do the same in smoking cannabis.”

Essential to have cannabis policy in place

Despite the potentially dangerous consequences of working while impaired, enforcing a cannabis policy at work can be challenging. The Canadian Centre for Occupational Health and Safety recommends that employers implement a policy that clearly indicates what accommodative and disciplinary measures might be taken should an employee use cannabis. Studies show that cannabis can be detected in one’s system for weeks after the drug is consumed, meaning testing alone will not be able to pinpoint when the individual last took the drug.

This imprecision makes proving the impairment of workers difficult, says Mallough. “The tests aren’t actually going to tell you anything,” he says. “That’s a major concern going forward.”

The CFIB, which has more than 100,000 small business members across Canada, has recommended that employers implement clear alcohol and drug policies that take into account cannabis consumption. These policies can guide the short-term and long-term process to follow when employers believe employees are consuming or are impaired at work.

“As important as it is to keep [cannabis] out of the workplace, we also think it’s important for employers and employees to understand their responsibilities and what’s expected of them,” says Mallough.

Difference between medical and recreational use

These workplace cannabis policies also need to spell out actions to take with regard employees who have prescriptions for medical cannabis. Employers have a legal duty to accommodate workers with disabilities, which includes those who consume cannabis for medicinal purposes, as long as they have a doctor’s note and prescription.

Mallough says there are ways to accommodate workers who consume medical cannabis, such as placing them in a position where potential impairment will not present a health and safety risk.

But in Newfoundland and Labrador, a court recently determined an employer’s responsibility to maintain a safe workplace can supersede its duty to accommodate workers who hold cannabis prescriptions. In 2017, the Supreme Court of Newfoundland and Labrador held that a construction company “had just cause” when it fired a man who consumed cannabis to remedy his back pain.

In other provinces, including Ontario, the rules are similar. Employers must accommodate workers with disabilities, even if they use medicinal cannabis.