Andrew Pariser / RESCON
It is time to get serious about cannabis in construction, industry members heard from a doctor, a lawyer and association presidents at the one-day Cannabis in Construction symposium recently held in Vaughan.
The event, co-hosted by RESCON and the Ontario General Contractors Association (OGCA), focused on health and safety and labour relations, and featured a presentation by addiction expert Dr. Melissa Snider-Adler. She emphasized areas in which the allowed use of medical marijuana is unique including the fact that doctors grant “medical authorization” not a prescription. She also spoke to the risk of on-site impairment by any substance and outlined that recreational marijuana will be legalized by the federal government for use by adults 18 and older (19 in Ontario) next July. Canada will be the first G7 member to do so across the country.
From left: RESCON president Richard Lyall, labour lawyer Carl Peterson, addictions expert Dr. Melissa Snider-Adler and RESCON vice-president Andrew Pariser.
“There are 200,000 people across Canada with authorizations for medical marijuana. Notice I said authorizations – you do not get a prescription for marijuana. There are 400,000 predicted for 2024, and that’s considered conservative,” she said.
All parties involved in the event said they expect the use of both medical and recreational cannabis to increase after July and this will create new risks that employers need to start anticipating and planning for now.
“About 10 per cent of the population has a substance abuse disorder,” Snider-Adler said. “Further, marijuana use is an issue that will affect all age groups. In Canada, the highest percentage of new users are now aged 55 to 60.”
Quoting stats from the state of Colorado, which legalized marijuana for recreational use in 2012, Snider-Adler said that there was a 230-per-cent spike in positive drug tests in motor vehicle accidents that resulted in death between 2006 and 2012, and that the use of marijuana doubles the risk of a car crash.
Dr. Melissa Snider-Adler
She said some people are panicking about the upcoming legislation, but there are things that employers can do to be proactive, including putting a well-planned policy in place: “From a commercial perspective, there should be zero tolerance.”
Carl Peterson, a labour and employment lawyer with Filion Wakely Thorup Angeletti LLP, says the change in law will become a balancing act between enforcing health and safety and ensuring human rights. He echoed Snider-Adler’s recommendation that all companies should re-examine or create specific health and safety policies and best practices.
In workplace law including health and safety, the onus will be on employers to ensure the health and safety of all employees and the public. Part of the due diligence process includes well-planned policies tailored to individual workplaces, in this case, for ICI and residential construction sites.
However, this is much harder than it sounds as the law is ahead of the science in some areas, Peterson said. As of right now, for example, employers may find that “an expert cannot confirm whether or not someone who smoked two joints at 7 p.m. on Sunday would be impaired at 7 a.m. on Monday.” Although the body of scientific research continues to grow, “the certainty we have with respect to alcohol and impairment is still missing in the cannabis debate.”
Dr. Snider Adler, left, joins RESCON's Lyall, middle, and OGCA president Clive Thurston, right, on a panel to discuss the anticipated impacts of the legalization of cannabis on the construction industry.
Therefore, if I’m in a safety sensitive position, what risks am I taking, and what is the duty of that employer? As Peterson outlined the legal landscape, he cited the leading Elk Valley decision in which self-disclosure by employees was front and centre. This case focuses on an oil sands company which terminated an employee for not following their self-disclosure policy.
This case builds on the well-known Meiorin test which sets the standards in Canada with respect to an employer’s duty to accommodate.
Legal information can be obtained by contacting Peterson at CarlP@filion.on.ca.
The bottom line is, A well-written policy can offer protection for employers and employees, and lays out expectations for everyone at work. However, keep in mind that any policy must comply with Supreme Court jurisprudence, which is continuing to evolve. For example, while random drug tests are an effective deterrent, they are difficult to justify in labour tribunals and at the Supreme Court. “As outlined by a landmark Irving decision, the circumstances required to justify random testing will not exist 90 per cent of the time,” Peterson said.
Click here for Peterson’s handout.
Lawyer Carl Peterson of Filion Wakely Thorup Angeletti LLP.
The lesson is that when employers put their updated drug policies in place, they must choose their words carefully. “The message should be a positive one as employees should come to work ‘fit for duty’ to ensure individual and company-wide safety.”
While we wait for the science to fully catch up with the law, employers must get their policies ready well ahead of July next year.” In reaction to the presentations, RESCON president Richard Lyall said: “Impairment is impairment is impairment and it has no place on the job site. While we recognize cannabis as the current headline-grabbing issue, our industry needs to continue our work on ensuring the safety of all workers. Between now and July, RESCON will continue to work with our industry partners including the OGCA and spearhead cannabis-based initiatives.”
OGCA president Clive Thurston pointed to the importance of legislative change. Employers need the rights and tools to ensure workplaces are safe. Without assistance from the Ontario government, workers may be at risk.
”Anyone who thinks there will be a massive culture shift between now and July is delusional,” he said. “There’s a lot of questions still out there on this and our industry needs to be prepared. The discussion must continue on the road to legalization, and we must focus on how to deal with it from a health and safety perspective.”
On a final note, RESCON in partnership ORCCA and the OGCA has already started planning for a second cannabis symposium in the spring. Because this issue still carries a great deal of regulatory uncertainty, it is the role of associations to ensure members have opportunities to gather the information they need as soon as it become available.
More to come. Work Safe!
Andrew Pariser is the vice-president of RESCON and chair of the RESCON health and safety committee. Email him at firstname.lastname@example.org.