Canadian HR Reporter

CANADIAN HR REPORTER September 4, 2017 22 FEATURES LOOKING FOR A SUPPLIER OR VENDOR? Visit hrreporter.com/hr-vendors-guide For 25 years, The Annotated Canada Labour Code has been the authoritative resource labour relations professionals rely on to help them interpret and apply the Canada Labour Code. New in this edition • Commentary on the CIRB's interpretation and application of the Employees' Voting Rights Act • Case law and commentary on the Board's review of how union membership fees are paid in determining the strength of certifi cation applications, commentary on the duty of fair representation owed by employer representatives to their member companies, the rights of litigants to be represented by legal counsel at arbitration proceedings, and further explanation of how the "maintenance of activities provisions" of the Code will be applied • Cases offering insight into when "violence in the workplace" complaints must be investigated and the role of employee representatives in "refusal to work" complaints • Digests covering the noted 2016 Supreme Court of Canada judgment in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, 2016 CSC 29, which dealt with what constitutes an "unjust dismissal," as well as other cases dealing with issues of whether paternity leave can be sought, what constitutes the date of dismissal for s. 240 purposes, as well as consideration of the "arguably relevant" test for the production of documents New Edition The 2017 Annotated Canada Labour Code, 25th Anniversary Edition Ronald M. Snyder Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # 987131-65203 $167 Softcover approx. 1900 pages December 2016 978-0-7798-7131-5 Shipping and handling are extra. 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EMPLOYMENT POLICIES Managing marijuana Developing multiple drug and alcohol policies can be laborious, confusing for employers By Jason Fleming W ith the legalization of recreational cannabis a little less than a year away, now is the time for Canadi- an employers to think about how they may have to revise work- place drug and alcohol policies to meet their responsibilities. is will be a significant challenge for many companies. Developing multiple policies or protocols for multiple substances can be labo- rious, confusing and increase an organization's legal risks. Build a framework A prudent approach is to develop a comprehensive policy using a categorization strategy that will withstand changes to the legal classification of substances, such as cannabis. A useful framework is to begin by broadly classifying substances into one of the following four categories: • legal, non-medical substances that cause impairment, such as alcohol and recreational cannabis • illegal, non-medical substances that cause impairment, such as cocaine and heroin • prescription substances that cause impairment, used legal- ly, such as opioids or medical cannabis • prescription substances that cause impairment, used ille- gally, such as opioids without a prescription. A policy based on these four classifications will have the flex- ibility to accommodate regulatory changes to specific substances. A substance that becomes le- gal or illegal will simply move to a new category within the framework. At present, the focus for most employers is simply on prepar- ing for the legalization of medical cannabis. However, there is an increasing amount of attention being put on psychedelic drugs, such as lyser- gic acid diethylamide (LSD) being used to treat depression and post- traumatic stress disorder (PTSD) in North America and Europe, which could soon become an issue requiring attention from employers. The proposed categorization strategy could be useful in the fu- ture for other substances if their legal status changes. It should be noted that each category of substance requires its own considerations for accom- modation, discipline or testing. Organizations with employ- ees in safety-sensitive positions, including handling heavy equip- ment, will likely apply two lenses to the management of the four substance classifications: one for safety-sensitive positions and one for all other positions. Analyze the workforce An important first step for man- aging employees in safety-sen- sitive industries is to conduct a thorough workforce analysis to determine the safety-sensitive positions and ensure these em- ployees are clearly identified. It is critical they receive infor- mation and updates related to drug and alcohol policy changes immediately, due to the inherent risks related to their positions. e accuracy of the initial clas- sification of safety-sensitive posi- tions is critical in order to estab- lish the drug-testing pool. Generally speaking, only em- ployees in safety-sensitive posi- tions should be tested for drugs and alcohol. Get the facts For workplace drug and alcohol policies to be effective, it is criti- cal that they are based on factual knowledge of the substances. is is particularly the case with cannabis where there may be a tendency to rely on anecdote and assumption, instead of science and facts, in the development of workplace policies. For example, a number of can- nabis products contain less than one per cent of the psychoactive cannabinoid tetrahydrocannabi- nol (THC) and contain primarily cannabidiol (CBD) which is non- psychoactive. is means a per- son can use cannabis, or a canna- bis extract, without being "high." Without this knowledge, it would be easy to mishandle an accommodation request or dis- ciplinary decision involving an employee using a CBD-based product as a medical treatment. As it stands today, employers have until July 1, 2018, to gain detailed knowledge about medi- cal and recreational cannabis, the various cannabis products avail- able on the market, as well as how these products impact an employ- ee's ability to do her job. Be thorough e thoroughness and effective- ness of an updated drug and al- cohol policy will also be critical for managing risk and educating employees. Simply posting an amended policy in the workplace will likely not be sufficient. Employers should ensure there is a record of employee acknowl- edgement, a record of training, as well as a record of knowledge verification to ensure there is no question employees are aware of the new or revised policy. Ideally, employers will launch the new or revised drug and al- cohol policies with enough time to engage in communication and training sessions with all employ- ees before recreational cannabis is legalized. It is also recommended that policies are developed in collabo- ration with all relevant stakehold- ers, such as health and safety team members, front-line manage- ment, in-house counsel as well as the labour relations team. Although the HR department will likely be responsible for up- dating and implementing the policy, it is important to avoid de- veloping them in a vacuum. En- gaging stakeholders early on in the process will help ensure the policy is supported after it is launched. Finally, it is important to ac- knowledge there is no one-size- fits-all approach to workplace drug and alcohol policy development. Aside from the overriding pri- ority of ensuring the safety of em- ployees and the general public, an organization's policy should be tailored to its specific environ- ment, characteristics and needs. Jason Fleming is the director of HR at pharmaceutical company MedReleaf in Toronto. For more information, visit www.medreleaf.com. (Note this article does not intend to provide any specific or legal advice, but rather broad and important considerations. Employers may want to consult legal counsel on specific issues.) Credit: OpenRangeStock (Shutterstock)

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