FETCO submission. Marijuana Use and the Workplace. Task Force on Marijuana Legalization and Regulation

Transcription

1 submission RELATING TO Marijuana Use and the Workplace TO THE September 5, 2016

2 About (Federally Regulated Employers Transportation and Communications) is pleased to provide comments to the. member organizations are all federally regulated firms in the transportation and communications sectors. has existed as an employers association for over 30 years. We are generally large employers in the federal sector, encompassing over 400,000 employees, and representing wellknown firms, such as Air Canada, Bell, Canadian National Railway Company, Canadian Pacific Railway, NAV CANADA and TELUS, to name just a few (a full list of our members can be found in Appendix A). Please note is not one voice. We try to present positions on issues that accommodate the collective concerns of our members but this is not always possible. As such, please accept these comments as a collection of thoughts from many of our organizations. Please also note that there are other important employer voices in the federal sector who should also be consulted on this matter. Introduction Upon reviewing the Government of Canada discussion paper, Toward the Legalization, Regulation and Restriction of Access to Marijuana, members were generally struck by one key observation that is, the discussion paper is nearly silent on the potential impact of the legalization of marijuana on the workplace in Canada. In only one section of the paper is there mention of issues related to the workplace and this occurs in Section 4 (page 21): In addition, consideration will need to be given to the use of marijuana in workplaces. For example, a zero tolerance policy could be applied for those who operate heavy machinery or conveyances. Interestingly, this sole measure offered in the paper to mitigate the impact of marijuana legalization in the workplace is stated in such a way to push all responsibility to employers, namely the implementation of zero-tolerance policies against the use of marijuana by employees. Undoubtedly as was evidenced during the national roundtable discussion on marijuana held on August 23, 2016 legalizing marijuana would be a complex, multi-layered issue. However, we view the near omission of the workplace in the analysis to date as a significant oversight which can have serious ramifications. Government has stated, in unequivocal terms, that it is committed to enhancing safety within the federal sector. submits that legalizing September 5,

3 marijuana without concurrently implementing measures to ensure the safety of Canadian workers and workplaces raises significant risk of jeopardizing that commitment. For this reason, we believe it is imperative that the Task Force undertakes a comprehensive assessment of the implications of legalization on Canadian workplaces, particularly in safety-sensitive operations. concerns, for the purposes of this paper, will be grouped in two main areas. Our paramount concern is related to safety and safety-sensitive positions. This will be the primary focus of this submission. There are other practical concerns, however, related to human resources policies and practices, that we feel the Task Force should consider in its deliberations. Safety and Safety-Sensitive Positions member organizations operate in key industries essential to the movement of Canadians, freight and data throughout our country, as well as between Canada and the rest of the world. Our member organizations are immersed daily in safety-sensitive operations. Our employers include airlines, railways, trucking and courier companies, marine ports, air navigation service providers, telecommunications firms and grain elevators, to name a few. The operations of members are essential to the security and economic prosperity of Canada, and are highly safety-sensitive. The nature of many members operations requires their employees to operate or work in close proximity to complex equipment and heavy machinery on a daily basis. Employees also manage complex transportation networks carrying Canadians, all the materials essential to Canadians way of life and untold volumes of the data of Canadians and corporations operating in the country. Some members (notably railways and maritime shippers) handle dangerous goods on a daily basis. The safety-sensitive nature of the work undertaken by our employees falls largely in two main categories, including the following: First, activities that bring what might be called public safety risk. member employees include airline pilots, train engineers, rail traffic controllers, truck drivers, air traffic controllers, longshore workers and grain elevator operators, to name just a few. Employees drive company vehicles and operate heavy equipment and machinery in the course of their duties on a day-to-day basis. These are activities that bring risk not only to the worker and co-workers but also to the public-at-large, including customers and also the general public in the vicinity of these activities. September 5,

4 Second, there is a category of safety-sensitive work that might best be called high hazard work that brings the greatest safety risk directly to the individual employee. This category of safety-sensitive work includes tasks such as working in confined spaces, at heights, around electrical equipment and in the presence of firearms, as well as other hazards. Here, the work activities bring the greatest risk to the individual employee who, at times, will be doing this work in remote locations or in the limited company of coworkers. For both of these safety categories, work occurs on company property but also outside the physical work location; in some cases, directly in the residences of Canadians (ex: telecommunications technicians or courier delivery agents visiting a household) or in highly public areas (ex: trains, airplanes, trucks, and other conveyances). members employees must be fit for duty at all times. Working while impaired or under the influence of alcohol or narcotics can lead to grave safety risks for employees themselves, in any industry. However, in the context of the operations of members, such risks must also be considered from the standpoint of industries that are national in scope and can affect the public, the environment and private and public property throughout Canada. Impairment of any kind at the workplace is unacceptable and brings significant safety risk to these operations, including the individual employee and those around him/her, as well as valuable corporate machinery, equipment and other physical infrastructure. It is clear that the legalization of marijuana will bring new and increased safety-related concerns to the job site. This issue is much broader than the impaired driving concerns raised in the discussion paper (though they are also critical concerns). members with safety-sensitive operations typically implement internal policies dealing with their employees fitness for duty, including prohibitions against the consumption of drugs or alcohol in the workplace. Insofar as drugs like marijuana are concerned, members ability to enforce internal policies and maintain continuous safe operations is significantly aided by the current prohibition against the possession and trafficking of drugs set out in the Criminal Code of Canada. Following review of the discussion paper and participation in the Task Force consultation, members share one fundamental question on this issue: How is government going to balance the substantial safety concerns at and beyond the workplace with allowing greater access medical and recreational to a drug that impairs? September 5,

5 The discussion paper attempts to mitigate these concerns by suggesting employers impose a zero tolerance policy for employees operating heavy equipment and conveyances. In reality, this standard already exists employees who do not report to work fit for duty will not be permitted to undertake safety-sensitive work. The new problem that emerges with marijuana is that the circumstances for addressing its use are more complicated, for three key reasons: First, contrary to alcohol, there is no current legislative standard in Canada for what constitutes impairment while using marijuana. In the context of enforcing workplace policies, this can lead to litigation over whether an employee having consumed marijuana was sufficiently impaired to be deserving of discipline. Such debates will only be exacerbated in the event that marijuana is legalized, at the expense of workplace safety. submits that, insofar as the government intends to legitimize consumption of marijuana, it has the corresponding responsibility to provide clarity for employers with safety-sensitive operations by establishing when a user of marijuana is legally impaired (the lack of a legislative standard poses great risk not only to the user of marijuana but to those around him/her, including co-workers and the public-at-large, who have no choice in the matter more on this later). Second, there is currently no immediate road-side test to measure impairment. If impairment cannot be measured at the job site, then enforcing a zero tolerance policy will be exceedingly difficult (the same will hold true for law enforcement officers on the roads). members operate equipment like trucks, trains and airplanes, which employees cannot operate if their faculties are impaired for any reason, including drug use. While there exist effective laboratory tests to measure consumption of various drugs (including marijuana) in furtherance of workplace policies, these must invariably be carried out after the fact and often at significant cost to employers. There are no portable and inexpensive tests to do for marijuana what the ubiquitous breathalyzer does for alcohol. Employers consequently do not, at present, have the logistical capabilities to quickly and effectively screen for marijuana impairment at the worksite in support of the very zero-tolerance policies which the discussion paper espouses as a workable option. Third, in all but a few exceptional cases, it is very difficult to determine whether an employee s faculties are impaired by marijuana, and to what extent, using only visible signs of impairment. Moreover, in the vast majority of cases, impairment will be steadfastly denied by employees regardless of actual circumstances (and evidence suggests that marijuana metabolizes in a non-linear and unique manner for each individual). Workplace policies intended to address impairment in the workplace due to drugs can only be truly effective if employers can preemptively ensure compliance by their employees. In order to effectively enforce zero-tolerance policies, employers must be able to screen their safety-sensitive workforce for marijuana, notably on a random September 5,

6 basis. consequently submits that regulation should be enacted mandating random drug testing of employees working in safety-sensitive fields within the legislative jurisdiction of Parliament. As this issue is likely to affect Canadian society as a whole, the responsibility for resolving these challenges should not be left to employers alone. submits that employers are subject to expansive duties pertaining to the safety of their employees, notably pursuant to Part II of the Canada Labour Code and s of the Criminal Code. In order for employers to fulfil their obligations regarding workplace safety, compensating for the vacuum left by the amendment of the Criminal Code to legalize marijuana requires at least some degree of regulation. Recommendations Safety-Sensitive Positions: Based on the discussion above, recommends the following to the Task Force: 1. That government develop regulation confirming the prohibition for all employees in safetysensitive positions in federally-regulated industries against consuming marijuana in the workplace or being under the influence of marijuana at any time while on duty or subject to duty, in order to maintain the safety of workplaces throughout Canada and ensure safe continuous operations in industries under federal jurisdiction. 2. That government delay the legalization of marijuana until (a) experts agree on a legislated standard for marijuana impairment that is rooted in scientific research and analysis and (2) the technology exists to test for impairment to this standard in a proven and reliable manner. 3. That government pass legislation allowing employers in the federal sector to conduct random drug and alcohol testing (using the technology noted above as well as existing technology for other impairments) for safety-sensitive positions. Practical Human Resources Policies and Practices The increased availability of marijuana use in Canadian society both for medical and recreational purposes will also bring specific practical human resources challenges to employers that have to be managed within the confines of current legislation, such as the Canada Labour Code and the Canadian Human Rights Act. When polled on this matter, members brought forward a series of concerns that would emerge under a legislated scheme that legalized marijuana use. As noted above, these concerns are complicated further by the fact that marijuana is different there is no legislated standard for impairment, there is no reliable test to measure the level of September 5,

7 impairment at the job site and there is no current legislation/regulation allowing random testing of employees in safety-sensitive positions. It is worth repeating here that, from a human resources perspective, any level of impairment at the workplace in safety sensitive positions is unacceptable. Employers will continue to closely monitor the work site for drug and/or alcohol impairment and will take all necessary steps to ensure impaired employees are removed from the job site. members are cognizant of the fact that marijuana has been decriminalized and/or legalized in a number of other countries. The discussion paper makes reference to learning from the experiences in these other jurisdictions but is silent on the potential impact of increased access to marijuana on the workplaces in these individual countries. We feel much could be learned about these experiences prior to proceeding further. members raised a number of concerns related to the legalization of marijuana that can have practical implications on human resources within their organizations. A small sample of these concerns is noted below: Examining fitness for duty, where there is no legislative standard for impairment and no reliable test to quickly and effectively screen for marijuana in the workplace. Operating in an environment where there is no legislative oversight pertaining to the disclosure of marijuana use, for both recreational and medical purposes. Preparing for the increase in employer-borne costs, liability and litigation associated with substance addiction problems (including decreased productivity, decreased attendance and related accommodation measures). Understanding the tipping point for marijuana use/addiction on cases where accommodation has reached the point of undue hardship. Addressing the impact of marijuana consumption on other employees (such as smell and second-hand smoke) and reconciling employers non-smoking policies with the legalization of marijuana (smoking it on the jobsite should not be permitted). Reconciling employers right to prohibit employee conduct that can detrimentally affect their reputation or public image with the consumption of marijuana by someone wearing a uniform or other clothing identifying them as an employee. Managing the potential implications of medical marijuana on the costs related to employee benefit plans. September 5,

8 Recommendations Human Resources Policies and Practices: As demonstrated above, members have practical concerns about the legalization of marijuana in the workplace. In the absence of any government oversight or regulation, it can be expected that these points will entail significant practical challenges for employers, and many will likely be resolved through litigation. submits that the Task Force must address these concerns in its analysis of this complex issue, and recommends the following to the Task Force: 4. That government convene a tripartite comprehensive study (government, management and labour) on the potential implications of the legalization of marijuana on the workplace and the human resources policies and practices that will be impacted by this substantial legislative change. 5. That government convene an expert panel of legislators, public servants and human resources practitioners to undertake a comprehensive study on the interaction between the various affected pieces of legislation, including the forthcoming marijuana legislation, the Canada Labour Code and the Canadian Human Rights Act, etc to ensure practitioners can effectively triage and manage issues related to marijuana use and the workplace. Concluding Comments appreciates the opportunity to comment on the work of the Task Force on Marijuana Legalization and Regulation. We believe your work is critical but are concerned at the timelines under which the Task Force is operating for such a broad and complex topic. From our perspective, the potential impact of increased marijuana use on the workplace particularly in safety-sensitive operations is largely ignored in the discussion paper and is an area that requires substantially more study before proceeding with wide-scale legalization of what, to date, has been an illegal substance in Canada. If there is any way we can further participate in this dialogue, we are anxious to do so. We may be contacted at the following address: Derrick Hynes Executive Director, or derrick.hynes@fetco.ca September 5,

9 Air Canada BC Maritime Employers Association Bell Canada Brinks Canada Limited Canada Post Corporation Canadian National Railway Company Canadian Pacific Railway CATSA CBC/Radio-Canada FedEx Maritime Employers Association NAV CANADA Purolator SaskTel Sunwing Airlines TELUS VIA Rail Canada Western Grain Elevators Association Appendix A: List of Member Organizations September 5,