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Up in Smoke: Legalized Marijuana and the Workplace

Up in Smoke: Legalized Marijuana and the Workplace. Anthony Purgas. Marijuana and Employment. Marijuana Today Recent Cases Drug Testing Legalization Strategies for Employers and Managers. 2. Marijuana Today. It is currently illegal to possess marijuana unless an exemption is given

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Up in Smoke: Legalized Marijuana and the Workplace

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  1. Up in Smoke: Legalized Marijuana and the Workplace Anthony Purgas

  2. Marijuana and Employment • Marijuana Today • Recent Cases • Drug Testing • Legalization • Strategies for Employers and Managers • 2

  3. Marijuana Today • It is currently illegal to possess marijuana unless an exemption is given • Medical marijuana • Not controlled dosages • Effects not predictable or certain • 3

  4. Marijuana Today • Controlled Drug and Substances Act • Ministerial exemption can be granted • 4

  5. Marijuana Today • Access to Cannabis for Medical Purposes Regulations (“ACMPR”) • Must obtain prescription • Maximum daily amount set under the ACMPR • Register with and order from a licensed produceror grow limited amount • 5

  6. Marijuana Today • ACMPR results in conflicts in workplace management • Safety issues versus accommodation of disability • 6

  7. Recent Cases • Calgary (City) v. CUPE, Local 37 (Hanmore Grievance), 2015 A.G.A.A. No. 43 • 30 year grader operator • Suffered from degenerative neck disease and chronic pain • 7

  8. Recent Cases(Hanmore Grievance) • Received prescription for medical marijuana • Obtained permit • Advised two supervisors of prescription and permit • 8

  9. Recent Cases(Hanmore Grievance) • Continue working for one year • No issues of impairment and performance was satisfactory • Upper management learned of marijuana use and became concerned • 9

  10. Recent Cases(Hanmore Grievance) • Employer investigation • Employee put into non-safety-sensitive position • Employee said only had a couple of puffs before bed and never operated equipment • Employer ordered independent medical examination • Investigation took nine months • 10

  11. Recent Cases(Hanmore Grievance) • The City concluded the employee had a dependency and could not be returned to the safety sensitive position • 11

  12. Recent Cases(Hanmore Grievance) • Arbitration Board’s findings • The employer’s investigation was flawed; the employee reported his medical marijuana use to his supervisors as was required by the City’s policies and was permitted to work without incident • Reinstated him to his position with conditions • 12

  13. Recent Cases(French Decision) • French v. Selkin Logging Ltd., 2015 BCHRT 101 • Employee had about 6 months of service • Also M. French had previously had cancer in 2009 which was treated but it returned in later 2013, which led to him using marijuana again • 13

  14. Recent Cases(French Decision) • The employer had a zero tolerance policy for drugs in the workplace • Mr. French had no medical authorization for using marijuana or Health Canada authorization to use marijuana • 14

  15. Recent Cases(French Decision) • Mr. French said he smoked it for pain • He smoked it in front of other employees, but not in the presence of his Foreman or the owner of the company • Mr. French and Mr. Finlay hit a moose with the company truck and the mechanic found marijuana in the truck • 15

  16. Recent Cases(French Decision) • Mr. French said if he continued working, he would continue to smoke marijuana on the job • The company issued a termination letter to Mr. French • The employee filed a discrimination complaint based on physical disability • 16

  17. Recent Cases(French Decision) • A prima facie case of discrimination was found because Mr. French was disabled and used marijuana to manage pain • A bona fide occupational requirement was established by the employer: having the zero tolerance policy for safety reasons was rationally connected to the job • 17

  18. Recent Cases(French Decision) • Without the legal authorization to smoke marijuana at work and without the medical authorization indicating it was safe for Mr. French to smoke marijuana at work, it amounted to an undue hardship on the employer in the reasonable accommodation of the disability. The complaint was dismissed. • 18

  19. Drug Testing • Canadian Model • Reasonable Cause and Safety-Sensitive Testing • Pre-site testing • Status of purely random drug testing • 19

  20. Legalization • Federal Government Announcement • Cannabis Act introduced April 13, 2017 • Legalized by July 1, 2018 • Will be regulated by Provinces • 20

  21. Legalization • Preceded by Federal Report in December 2016 • Report does cover workplace safety in limited extent • Main conclusions on impairment and cannabis • Upcoming issue with legalization • 21

  22. Strategies for Employers • Draft or review policies • Clear policies • Flexible (include last chance or immediate termination as options) • Include rights to order testing • 22

  23. Strategies for Managers • Usage guidelines - a hybrid of smoking and drinking • Be cognizant of improvements in testing • OH&S issues • 23

  24. Thank You For Your Attention Questions Are Welcome Anthony Purgas 780.497.3391 Toll Free: 1.800.661.7673 (RMRF)

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