Law Times

Law Times • OcTOber 16, 2017 Page 11 www.lawtimesnews.com Legal uncertainty no reason to wait Roll ahead with workplace pot policies BY MICHAEL MCKIERNAN For Law Times E mployers shouldn't let uncertainty around the legalization of marijuana stop them from crafting workplace policies about its use, according to employment law- yers. Earlier this year, the federal government tabled bill C-45, the Cannabis Act, in Parliament. The law will govern the sale and use of marijuana for recreational purposes, setting a July 2018 tar- get date for implementation. With details of the new legal regime only gradually emerg- ing as the deadline quickly ap- proaches, Shana French, a lawyer with Toronto employment and labour law boutique Sherrard Kuzz LLP, says many employers are feeling overwhelmed. "It presents this fear for them that there's going to be chaos and anarchy, with people smoking up in the middle of the day and nothing they can do about it," she says. "That's not the case, but few employers have given any real thought to what legalization will mean for them." Laurie Jessome, an employ- ment lawyer with Cassels Brock and Blackwell LLP, says some people's fears about rampant absenteeism and impairment among marijuana users follow- ing legalization is driven by out- dated stereotypes about the drug. "I don't think there's any need to panic. Not much is likely to change in terms of how workers function," she says. French says there's still time to act and that those employers who do attempt to address the drug's new status in their work- place policies will put them- selves in a much better position once the law changes. "The end of the year is often when people will review their policies, so as 2017 comes to a close, it's a good time to be for- ward-thinking," French says. "If you can turn your mind to these issues now, it's a great opportu- nity to implement policies on a proactive basis." For those concerned that le- galization will not actually oc- cur by the target date, French says they can account for both eventualities by drafting policies that distinguish between "legal" and "prohibited" substances. "Employers would be well advised to focus their attention on developing and implement- ing policies about the use and possession of marijuana. They don't have to reinvent the wheel, but they should make sure that it is tailored to their own work- places," French says. "One size doesn't fit all when it comes to these policies, particularly when you're in litigation and suddenly all the little details matter." Although many expect mari- juana use following legalization to increase across the population as a whole, George Waggott, a member of the employment and labour relations practice group at McMillan LLP in Toronto, says it's hard to predict the extent to which any rise will impact on particular workplaces. "A lot of employers just don't know if this is going to change workers' ability to do their jobs," says Waggott, who acts exclu- sively for employers. "It's a big question mark, so they just put it in the 'too-hard' pile and are waiting to see how it plays out." In fact, he says, he was sur- prised that only 46 per cent of respondents to a survey by the Human Resources Professionals Association said their current workplace policies weren't up to the job of dealing with the issues legalization will bring. The survey was commis- sioned as part of a white paper on marijuana legalization by the group, entitled "Clearing the Haze." "While a year may sound like a lot to prepare for the legaliza- tion of marijuana, we are urg- ing employers to act now. In terms of legalization on a broad scale, Canada is in uncharted territory," Bill Greenhalgh, CEO of the HRPA, said in a state- ment. "The sooner employers can communicate clear policies to employees, the better." In the report, the HRPA iden- tifies the distinction between recreational and medicinal use of marijuana as one of the chief areas of concern for employ- ers. Zero tolerance policies for use and possession could cause problems, it notes, because of the duty of accommodation employ- ers owe to employees with dis- abilities. As a result, the HRPA recommends that government regulation of marijuana is car- ried out in two separate streams. "A separate medical stream allows employers to more easily verify when they have a duty for medical purposes," the report reads. The HRPA survey says just 11 per cent of the 650 members it questioned had previous experi- ence with medical marijuana, but Waggott says those who are new to it may benefit from think- ing about how they deal with other prescribed medicines. "Marijuana generates strong reactions in people, but in its medicinal form, it shares many of the attributes of other over- the-counter drugs," he says. "If someone on your staff is tak- ing Tylenol 3s, you don't all of a sudden dive into all kinds of HR issues. If it's taken in a properly managed way and doesn't affect how they do their job, then there aren't too many problems." French says employers with safety-sensitive workplaces may FOCUS Shana French says employers who try to address marijuana's new legal status in their workplace policies will be in a much better position once the law changes. See Deadline, page 12 Get a 360-degree view of the public inquiry process Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 988072-65203 $130 Softcover approx. 650 pages October 2017 978-0-7798-8072-0 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 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