Given the impending legalization of marijuana, workplace safety and your business have a lot to talk about. The reality is that the legalization of marijuana will likely cause a lot of discussion and, potentially, create far-reaching implications for employers. While each and every employer has a duty to ensure a safe workplace, you must ask yourself: Will a zero tolerance approach to marijuana use serve your company’s interests?
THE DOWNSIDE OF A ZERO-TOLERANCE POLICY
For those working in safety-sensitive industries such as transportation, forestry, or resource extraction, I challenge you to think outside the box on this one. On one hand, an employer has every right to refuse an applicant a job if they use marijuana, just as they do for alcohol or cocaine—even if it is on a casual or recreational basis. By that measure, employers may let go of a current employee for the same reason, even if they are otherwise satisfied with their work. But in what many are calling a tight labour market, will a zero tolerance policy simply cause unrest and outstrip the benefits that those employees bring to the table?
MARIJUANA IS THE NEW ALCOHOL
I am not suggesting that employers allow on the job use of marijuana, nor should workplace impairment due to off-duty marijuana use be allowed or tolerated, but there are other approaches.
I invite my clients to think of marijuana use as they do alcohol and then to develop sound policy around the same principles of use. A casual user of marijuana poses no more threat to the safety of the worksite than does a casual drinker; so the question then becomes: Why treat marijuana use differently than alcohol if doing so will impact your company’s ability to hire and retain qualified individuals?
POLICY, NOT PROHIBITION
What every employer needs is to develop a well thought out policy and adopt testing protocols; all of which should reasonably reflect their expectations and needs. One example is lab-based oral fluid testing, which provides a shorter testing window than traditional lab-based urinalysis. If you are operating in a safety-sensitive industry without a policy or a testing program, now is the time to develop and incorporate both.
CLEAR & HONEST COMMUNICATION IS KEY
Clear and honest communication between an employer and their current (or potential) employees is key for success. Those who are applying for a position should be asked both about their current and past drug and alcohol use, including marijuana. If an applicant acknowledges that they are a marijuana user, the date of their last use should be determined in the interview and the applicant made aware of the employer’s testing program.
DRUG & ALCOHOL TESTING PROTOCOL
Once the potential employee is aware of the drug and alcohol testing protocol, the employer must make it clear that a.) They want to hire the applicant, and b.) A job offer has been made. Once that is clear, drug testing may be carried out. Ideally, this should include both lab-based urinalysis, which will detect marijuana use over a much longer period of time, as well as oral fluid testing, which in most cases has a window of 3 days.
If the applicant has not been forthcoming about his or her drug use, it may give the employer grounds to deny employment on the basis of misrepresentation. Applicants should be advised to abstain from use for a week prior to the test if the company decides on something other than a zero tolerance approach.
CROSS BORDER COMPANIES
For Canadian employees and companies operating in the US, or who are carrying out cross-border transportation governed by the American Department of Transportation (DOT) rules, the legalization of marijuana in Canada will have no effect on application of the American DOT program and its use remains prohibited.
Keeping your workplace and employees safe is the ultimate key to your success. If you would like to talk safety, or to find out more about our consulting practice, contact us for a consultation today.
Tom Yearwood, LLB is the Founder and President of Denning Health Group, a provider of turnkey drug and alcohol testing services, which includes policy development and supervisor training. Tom has over 20 years of experience working with some of Canada’s largest employers.