The Canadian Mental Health Association’s (CMHA) Impairment in the Workplace (2019) has been used as a guide in the following section.1
Include clear definitions for key terms:
2. Safety-sensitive positions
3. Expectations for being ‘fit for duty’
Develop a clear protocol in the event of impairment in the workplace
· Ensure that managers and supervisors will address any concerns about an individual’s capacity to execute their work safely in a discreet and timely way.
· Make it clear that employees who are intoxicated at work will be sent home as soon as possible, with transportation arranged.
· Determine who will oversee documenting any events and who will be contacted.
· Outline how to deal with the situation when it happens so that you can grasp the facts and analyze any accommodations or other results.
· Make sure that everyone on staff is aware of the protocol.
· Think about if the policy applies to all employees or whether there are different protocols for different staff or volunteer positions.
Identify duties of employers
Duty to inquire
When an employer observes changes in an employee’s performance, attendance, or behaviour that could suggest problematic substance use or impairment, the employer should first offer help and accommodation before imposing discipline or other consequences.
Employers should routinely advise employees who work in safety-sensitive positions about the requirement to disclose whether they are using a substance that could cause on-the-job impairment, according to the Ontario Human Rights Commission.2
Duty to accommodate
People who take medications (including cannabis) for a disability or health condition as well as people with substance use disorder have the right to seek accommodation to the point of undue hardship. However, accommodation does not mean permitting cannabis impairment on the job.
Identify duties of employees
To the best of their abilities, the employee with the disability or health condition must communicate their accommodation needs. Some employees may be hesitant to share personal health information for fear of being stigmatized or discriminated against. Employees should be informed that it is their responsibility to disclose, but that they will not suffer punishment if they do so, and that their employer will cooperate with them to build a plan and keep information confidential.
The policy should outline expectations of employees, which may include:
1. Arrive fit for duty and remain as such for the duration of their shift
2. When off duty, refuse a request to come into work if unfit for duty
3. Come forward to management if a colleague is impaired by substances.
Drug testing in the workplace in Canada can be controversial, as there are two competing factors to consider: maintaining individuals’ human and private rights, while ensuring employee and public safety. Furthermore, because cannabis is lipophilic (fat soluble) and can remain in the body for a long time. Current drug testing methods are insufficient for accurately assessing the degree of cannabis impairment.
Employers will have to evaluate their drug testing policies on a regular basis until a reliable method of impairment testing becomes available. 1
The different types of testing situations include: (1) pre-employment; (2) reasonable grounds and post-incident testing; (3) random testing; and (4) testing as part of a rehabilitation plan.3
There is some controversy over drug and alcohol testing in the workplace, and discrimination and infringement of rights should be considered. In certain situations, an employer testing for drug and/or alcohol usage in a “safety-sensitive” employment is permissible.
How to test for presence of cannabis in the body
Point-of-care testing (POCT) of oral fluids and urine are possible, but they do not always correlate with impairment. Furthermore, THC is the cannabinoid tested for, and all cannabis products, including those with a high CBD content, include some THC.
Oral fluid POCTs are the most advanced type of tests currently available, and they can indicate recent use. Urine POCTs are considered an inaccurate way of testing, because some people can test positive for THC in their urine for up to two months after their last use. 5
Although oral fluid testing is the most advanced assay available, it is still considered a qualitative test, meaning that even a trace amount of THC (such as that present in non-sedating CBD oil) might cause a ‘positive’ result. Therefore, the future of drug testing should be quantitative, with a specified threshold that allows an employer to know that if an employee tests positive, then they are truly impaired.
Drug-impaired driving has been a criminal offence since 1925. Cannabis-impaired driving can result in injury or death. There is no set amount of time to wait before driving after using cannabis, therefore never drive when impaired, and never get into a car with an impaired driver.
Law enforcements are trained to detect drug-impaired driving using:4
· Standard Field Sobriety Test (SFST), which is typically administered at the roadside
· Drug Recognition Expert (DRE) evaluation, which includes a series of tests and a toxicological sample (urine and blood)
· Oral fluid drug screening equipment
· Blood samples
Currently in force in Canada, the impaired driving laws (Bill C-46) include limits for THC. These limits are as follows:5
· 2 nanograms (ng) but less than 5 ng of THC: Having at least 2 ng but less than 5 ng of THC per millilitre (ml) of blood within two hours of driving would be a summary conviction criminal offence.
· 5 ng of more of THC: Having 5 ng or more of THC per ml of blood within two hours of driving would be a hybrid offence. Hybrid offences are offences that can be prosecuted either by indictment, in more serious cases, or by summary conviction, in less serious cases.
· Combined THC and alcohol: Having a blood alcohol concentration (BAC) of 50 milligrams (mg) of alcohol per 100 ml of blood, combined with a THC level greater than 2.5 ng per ml of blood within two hours of driving would also be a hybrid offence.
Department of Justice Canada (2018) also notes that:
· Oral fluid drug screeners can detect some or all of THC, cocaine, and methamphetamine, the three most common impairing drugs found in Canadian drivers. Police can demand an oral fluid sample if the officer has a reasonable suspicion that the driver has drugs in their body based on objectively visible facts, such as:
• red eyes
• muscle tremors
• speech patterns
If a driver tests positive on an oral fluid screening test, the positive result would confirm the presence of the drug, and combined with other signs of impairment observed by the police at the roadside, would provide grounds for the investigation to proceed further either by making a demand for drug recognition and evaluation (DRE) or a blood sample.
Employee Education and Prevention
Educational material can provide information on:
1. All factors to consider with medical cannabis including types of cannabis products, product labelling, listed cannabinoid content, administration factors in cannabis delivery methods, impairment, and effects of cannabis on youth.6
2. Knowledge of the role and responsibilities, as well as how impairment will be assessed (e.g., fit to work).7
3. Substance use education and training, including cannabis, prescription drugs, alcohol, and illicit drugs. 7
4. Availability of current resources and services for an individual and their family. 7
5. Consequences of disciplinary action if the organization’s policy is broken.7
6. The employer’s policy and procedure for accommodating employees.7
7. How to recognize and report signs and symptoms of impairment in others to their supervisor or employer. 7
Download the sample checklist for developing a workplace impairment policy here.