Is your job site ready for recreational cannabis?

Existing workplace policies will need to be adjusted when recreational marijuana becomes legal in Canada on Oct. 17

The legalization of recreational cannabis this October raises significant safety concerns for contractors. Legalization will bring easier access to cannabis and end the social stigma of using an illegal drug. Many contractors fear this will lead to a spike in cannabis use and increased impairment on construction sites. However, there are a number of steps contractors can take to reduce the safety risks that may arise from cannabis legalization.

Cannabis Impairment Illegal On the Job Site

Provincial laws on cannabis use in the workplace vary. In Ontario, for example, consuming cannabis in the workplace will remain illegal. Employees cannot smoke cannabis anywhere on a job site, including outdoor spaces. Some provinces will allow employees to smoke cannabis in any location where smoking cigarettes is permitted. Others are still in the process of developing new laws governing cannabis use in the workplace.

Existing occupational health and safety laws will continue to prohibit employees from working on construction sites while impaired. Contractors should enforce a zero tolerance policy for cannabis impairment on-site, with certain exceptions for medical cannabis, as set out below. This zero tolerance policy should be recorded in a written drug and alcohol policy.

Existing Drug and Alcohol Policies Do Not Work for Cannabis

Existing drug and alcohol policies likely do not protect against the unique issues arising from cannabis use.

Unlike alcohol, there is no established limit on how much cannabis it takes to cause impairment. There is also little agreement on the method to measure cannabis use. The signs of cannabis impairment can also be less obvious than those arising from alcohol use, making it more difficult to detect impaired employees. Unlike alcohol and illegal drugs, employees may in some circumstances have a right to use cannabis for medical reasons. Drug and alcohol policies must take into account the employer’s duty to accommodate medical cannabis use. As such, contractors cannot sit back and rely on their existing policies.

Update Your Drug and Alcohol Policies

Contractors should work with a legal adviser to ensure their drug and alcohol policies are up to date. Among other things, a legal adviser should make the following changes to an existing policy, where applicable:

• Specifically prohibiting the recreational use of cannabis or cannabis impairment in the workplace
• Changing definitions for terms such as “illicit substances,” which may not capture recreational cannabis use once it is legal
• Add a limit on the acceptable amount of cannabis in an employee’s system and ensure that limit is measurable through drug testing
• Add or revise existing requirements for employees to submit to random, suspected use, or post-incident drug testing
• Set out the responsibilities of employees using medical cannabis, including the requirement to disclose use to the employer
• Consider whether the plan for responding to suspected impairment from recreational cannabis use should differ from impairment caused by other substances
• Establish the consequences of a violation of the policy
• Require employees to sign a written acknowledgment that they have read and understood the policy in its new and revised form

Train Your Employees About Dangers and Policy

Contractors should enforce a zero tolerance policy for marijuana impairment on-site

Contractors should educate employees about the dangers of using equipment and working at heights while under the influence of cannabis. Although there have been numerous public education campaigns about the dangers of alcohol impairment, there is less public education about the impact of cannabis on a person’s reaction time and alertness. Employees may be under the misimpression that cannabis has little impact on their ability to work safely.

Employees should also be taught all aspects of the new drug and alcohol policy with a particular emphasis on recognizing impairment in others and what to do if you suspect someone is impaired on-site.

Do Not Ignore Breaches of Existing Policies

Even the most comprehensive drug and alcohol policy is useless without enforcement.

Supervisors should lead by example by refusing alcohol and drugs before and during work hours. Supervisors must also strictly enforce current policies. If supervisors ignore alcohol during lunch or smoking cigarettes in covered spaces, they are sending a message that employees can safely ignore the rules when it comes to cannabis use too.

Require Suppliers and Sub-Trades to Comply

Contractors should ensure that their subcontractors, suppliers, and any others working on the site have an appropriate drug policy. At the very least, they should be given copies of the contractor’s policies and agree to comply with and enforce them.

Duty To Accommodate Medical Cannabis

As an employer, contractors have obligations under the Human Rights Code. If an employee is authorized to use cannabis for a medical purpose, the employer must treat it like any other medication and may have a duty to accommodate. The employer may be required to offer to the employee an alternative job that can be properly and safely done while using medical cannabis, if such a role exists.

If accommodating the employee will raise serious safety and health concerns on the site or significantly increase costs of operations, contractors may be exempt from providing the accommodation. Accommodating an employee does not mean that you should ever let employees carry out their duties while impaired, especially when driving, operating heavy machinery, or working at heights.

Contractors should seek legal guidance when considering this complex area of the law.

Laura Brazil is a lawyer in McMillan LLP’s litigation group specializing in construction, real estate, and commercial litigation.

Laura represents owners, general contractors, subcontractors, design professionals, material suppliers and other construction industry members.

Paola Ramirez is an articling student at McMillan LLP.