Pot legalization creating complex balancing acts in workplace policy

by Leo Almazora15 Oct 2018

As the reality of cannabis use permeates Canadian workplaces, insurers must be aware of the rights and obligations that must be considered in key situations — and how those issues can impact risks.

“Currently, it is permissible for an employer to test an individual employee, after the fact, if there are reasonable grounds to believe that he is impaired,” wrote Anna Casemore of Blaney McMurtry LLP in a recent commentary.

As Casemore explained, Canadian case law has not yet provided a precedent allowing employers to automatically test for illicit drug or alcohol use. But random testing may be permitted by courts — with consideration toward workers’ privacy — if it is shown to be a proportionate response to legitimate safety concerns. Those concerns may be based on a demonstrably pervasive (not individual) problem of substance abuse, or a highly safety-sensitive work environment.

Proving impairment from the consumption of cannabis may be a challenge for employers, especially as some high-CBD medicinal products do not produce the same psychoactive effects as THC-rich strains. There are also unresolved questions about how combined consumption of alcohol and drugs can affect people.

On the issue of disclosure, Casemore noted that there’s no definitive rule or law requiring employees to disclose their use of medically prescribed cannabis. However, workers are required to inform their supervisor of any violation of the Occupational Health and Safety Act (OHSA), or any hazard they’re aware of, which could endanger their own or their coworkers’ safety.

“Consequently, the worker is obligated to ask her health-care provider about the likely effects of her prescribed cannabis, and to disclose any concerns to her employer,” Casemore said, adding that employers have a duty to accommodate workers who have been prescribed cannabis, as long as those employees have made full disclosure.

Employees may also be terminated for being impaired in the workplace, though that would depend on how critical safety is to their work and how extreme the incident of impairment turned out to be.

“Inevitably, insurers will face a higher volume of claims once the new legislation comes into force,” Casemore said, adding that the increase will likely pervade throughout multiple areas of coverage. “They may need to revisit their existing policy wording … and ensure that insureds who are involved in the cannabis industry are properly armed (increased security measures on property, sophisticated computer software etc.) to prevent resultant claims.”

 

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