Shifting Focus: Why your Drug and Alcohol Policy Shouldn’t Focus on Cannabis

Marijuana legalization is here. Is your organization ready?

As Canada readies itself for cannabis legalization, many questions remain up in the air, especially for employers. What will it mean once we permit recreational use? Will employers have to accommodate droves of new medical cannabis patients? What about casual users, or habitual users? In this article, we will explore these questions, their answers, and map out the known uncertainties of pending cannabis legalization.

Cannabis legalization presents unique challenges, and it is not yet clear how to approach all of them. Some organizations guide their policies through medical and fact-based methodology, and others choose to act on philosophical grounds or moral instinct.

The conversation from cannabis policy experts in 2018 has shifted focus, from argument over consequences to best practices in implementation. Relying on informed legal opinion and sound company policy will give your organization confidence and security in measuring response to drug and alcohol incidents.

Most importantly: The focus of your policy needs to shift from substances, to evidence of impairment.

Canadian Human Rights Commission – Shifting the Focus away from substances

An extraordinary change is coming through the Canadian court system. The message from the Canadian Human Rights Commission has been loud and clear: You cannot restrict a freedom without just cause. Company after company has failed in court to justify their drug and alcohol policies to the satisfaction of the Crown, and have been shocked to discover their drug policies were unenforceable, or even illegal!

Companies must shift their policy focus away from use of cannabis and drugs. These factors are no longer central to a good company drug and alcohol policy. Instead, the focus must shift towards impairment.

Impairment is more relevant to safety outcomes. This change in focus is necessary for several reasons:

  1. A blanket ban policy can lead to discrimination complaints, which both the Alberta Human Rights Council and the Canadian Human Rights Council have regularly upheld and supported over employer interests.
  2. We do not currently have the capability to confirm a legal standard of impairment for cannabis. Unlike alcohol, cannabis has an idiosyncratic dose-response from person to person. Consequently, we have no agreed-upon legal standard of intoxication for cannabis.
  3. A focus on recognizing the signs and symptoms of impairment in a company policy enables employers to leverage the power of reasonable suspicion testing.

Focus on Impairment to Avoid Discrimination Complaints with the Human Rights Commission

The Alberta Human Rights Commission has acknowledged that drug and alcohol dependencies are protected under grounds of mental and physical disability. If medication or drug dependency is revealed, the employer has a duty to accommodate up to the limits of undue hardship. This means that employees can make a human rights complaint if they are terminated because of use due to a medical cannabis prescription or cannabis addiction.

Reasonable accommodations are situation-specific. Measures could include the disclosure of medical cannabis information, cooperation with treatment recommendations, or duty modification. The limits of undue hardship include financial cost, effect on employee morale, and safety risks.

Recreational usage is not protected under the Alberta Human Rights Act. Employers can prohibit recreational cannabis use and possession on company property. Employers also have the right not to accommodate impairment from cannabis use while performing work duties. This means that employees do not have the right to smoke up on coffee breaks and return to work. This is a reasonable expectation, but employers need to know how to protect the workplace from this kind of dangerous behavior. If a drug and alcohol policy is poorly written, it could be a precursor to human rights violations.

Focus on Impairment to Side-step the Current Limitations of Drug and Alcohol Testing

Drug testing is commonly used in the workplace. It can be useful to determine if a person has a particular substance in their system. However, in the case of cannabis, testing cannot determine impairment levels. Cannabis testing methods include saliva swabbing, hair samples, and urine samples. The hair and urine samples can help determine if a person has used cannabis within the previous 3 months. Saliva testing can help determine if a person has used cannabis in the last 24 hours. Neither test can determine how impaired the user is, or if they are impaired at all.

This inability to determine impairment through cannabis testing places increased emphasis on the need for non-discriminatory drug policies. According to the law firm Brown Lee Law, the current case law is uncertain on this point. But there is a general trend: employers must have very strong justification for pre-employment and random testing. This justification includes proof that employees occupy “safety sensitive positions.”

The case law has also generally found that positions classified as “safety sensitive” must present an extraordinary danger even by the standards of the industry, or to the general public. It is not enough to simply argue that “our industry is dangerous.” To declare a position “safety sensitive,” it must be extraordinarily dangerous even within your industry. This means it is legally indefensible to make all positions safety sensitive and then require widespread pre-employment or random testing. (More on this in an upcoming article.)

Post incident testing must be substantiated by an incident analysis, and that incident analysis must support a conclusion that drugs or alcohol could reasonably be a factor. An ounce of prevention is worth a pound of cure, and post-incident testing does not serve to protect; it is, by definition, already too late. Focusing on the recognition of impairment can help prevent an incident, instead of leaving a clean up after one.

Focus on Impairment to Leverage the Power of Reasonable Suspicion Testing

Employers have a powerful tool at their disposal to make sure that drug testing is effective and appropriate: reasonable suspicion testing. Reasonable suspicion means that there is some demonstrable sign or symptom of impairment, stemming from drug or alcohol use. A systematic approach is used to document the occurrence and limit safety risks. This procedure is traditionally used in safety sensitive workplaces.

If an employee is suspected of impairment, the following procedure should be taken:

  1. Observe the employee.
  2. Confirm that he or she is impaired.
  3. Document the occurrence.
  4. Confront the employee.
  5. Test the employee.

This approach proves that corrective measures have been taken because of a perceived risk to safety, not discriminatory reasons. It is very important to observe and document any signs of impairment before confronting an employee.

Signs that an employee is impaired could include:

  • Appearance – disheveled, messy, squinting or bloodshot eyes, erratic and uncontrollable eye movements, tremor, drooling
  • Behaviour – mumbling, incoherent, slowed movement, fidgeting, trembling, inability to remain still, teeth grinding, picking at skin
  • Odor – skunky, smokey, dank, sharp, acidic
  • Actions – aimlessness, isolation, aggression, paranoia, anxiety, confusion

Supervisors should be adequately trained to recognize signs of impairment. At SCS, we offer these online courses for supervisors and employees to assist in recognizing impairment: Alcohol and Drug Awareness, and Substance Abuse Awareness for Employees. We also offer drug and alcohol testing through our Occupational Health Division.

Notice impairment before an incident happens. Reasonable suspicion training helps to avoid discrimination and bias, and focuses on what’s relevant: impairment.

Moving to a New Focus—Impairment

The inability to use drug tests to determine impairment presents many challenges for employers. Careless or over-broad drug testing policies put companies at risk for discrimination complaints. Forming your policies around substances misses the entire point of a drug and alcohol policy: To protect your company, your workers, and the public, from behaviours caused by impairment.

Impairment is broader than the presence of drugs or alcohol. Impairment can be caused by legitimate medical conditions, environmental conditions such as heat, cold, or dehydration. Impairment can be caused by emotional stress or psychological state. Impairment is more than what someone puts in their body; impairment is the state of mind that endangers critical judgement.

Turning the focus of your company policy towards impairment means you don’t have to concern yourself with what is or isn’t in an employee’s body, or what the worker does on his or her own time. An impairment policy focus means the only thing you have to care about is your employee’s conduct when on the job.

We do not (and should not!) have to judge people for their choices, especially when it doesn’t affect their work capabilities. In a good impairment policy, the substances in question become irrelevant; it’s the expectations that are set in the workplace that matter.

This is why a system that addresses “reasonable suspicion” is so valuable. As legalized cannabis and medical cannabis become part of our daily lives, and the conversation of ongoing legalization of other drugs continues, the priority to create a safe and productive workplace remains. Successful safety programs rely on clear and effective drug impairment policies.

It’s time to shift the focus. Impairment is the enemy, not the substance, nor the user. When you train company supervisors and management to recognize and address impairment in the workplace, improved safety is the outcome.