Cannabis and the workplace: a primer

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Associate Member firm Fernandes Hearn LLP held its Annual Maritime Conference, January 16 in Toronto. Attendees were offered a look at the Canadian cannabis landscape with a presentation by Tom Wilson, Program Consultant with DriverCheck Inc. a company which offers solutions for medical testing and assessment needs.

In June 2018, the federal government passed Bill C-45, the Cannabis Act, which was designed to legalize and regulate the sale and use of marijuana in Canada. The Act came into full effect on October 17, which was the first day that Canadians could legally purchase the product through licensed retailers.

Cannabis is defined as anything that is derived from the cannabis plant. There are over 100+ different cannabinoids: Delta-9-tetrahydrocannabinol is known by its short form THC.

Cannabidiol, meanwhile, is known as CBD.

THC influences the endocannabinoid system, affecting appetite, mood, memory and pain sensation.

CBD can deliver many of the same benefits of THC without inducing its psychoactive effects.

CBD is available in an oil form. It contains low THC, which is less impairing but will still show up positive in a test.

Cannabis impairment increases twofold the risk of an accident and when combined with alcohol, up to 200 times, noted Wilson. The percentage of Canadian drivers killed in vehicle crashes who test positive for drugs (40%) now exceeds those testing positive for alcohol (33%).

With recreational cannabis now legal in Canada as of October 17, 2018, there needs to be a greater awareness of how its consumption affects the workplace.

Cognitive Impairments linked to the use of cannabis include executive function, working memory, planning/organizing, initiation, emotional control, and inhibition.

Cannabis use prior to driving increases the risk of being involved in
a motor vehicle accident – there is a substantial evidence of a statistical association.

In an aviation test, experienced pilots trained on a flight simulator, and given one joint of marijuana, showed significant impairment lasting up to 24 hours, with 7/9 showing impairment at 24 hours.

Medical cannabis use is on the rise in Canada, with 330,758 documented users in 2018.

According to the College for Family Physicians February 2018 Guidelines for Prescribing Medical Cannabinoids, its use is noted for nausea and vomiting from chemotherapy, multiple sclerosis, spasticity, spinal cord injury spasticity, severe neuropathic pain, and perhaps also for refractory seizures, and after reasonable trials of multiple other treatments.

But it is also frequently authorized for anxiety (mental health), insomnia, chronic back pain (not neuropathic), and other types of pain.

With respect to cannabis for medical purposes there are numerous concerns with workplace safety, despite a legitimate medical explanation. DriverCheck makes recommendations that the authorizing physician be contacted to make a determination as to whether the employee can safely perform their duties at work. It may then be necessary for the individual to undergo a Fitness for Duty evaluation by a qualified medical practitioner with corresponding expertise to determine if the donor is medically qualified to perform their duties. DriverCheck can work with companies to help facilitate this process.

A result letter sent to the employer will include a notation to alert that there is an employee with authorization to use cannabis for medical purposes and that that has been verified. It will also include a recommendation for an assessment, due to the known impact of cannabis on work performance and safety.

DriverCheck has an MRO review process where tests with a laboratory confirmed positive result for THC or THC metabolite, and for which a valid authorization exists, will be reported as a verified negative once the following is confirmed:

  • A valid authorization for cannabis for medical purposes;
  • Proof of registration with a Licensed Producer;
  • A valid receipt for their purchase from a Licensed Producer covering the timeframe of the test;
  • The above information corresponds with the results.

In preparation for recreational cannabis, having a workplace policy is most important .

Ensure it is up-to-date, taught and referred to.

Provide manager and supervisor training. Consider drug testing to help deter recreational use.

Urine testing is the “gold standard” for risk-based programs under the U.S. Department of Transportation, and is used in 95% of testing because of its longer window of detection even when there is no indication of acute impairment.

When it comes to safety sensitive work, it is recognized that the timing and duration of cannabis impairment is variable and that more research is needed in this regard.

To provide practical guidance, until definitive evidence is available, it is not advisable to operate motor vehicles or equipment, or engage in other safety-sensitive tasks for 24 hours following cannabis consumption, or for longer if impairment persists.

Future testing is expected to include better instant oral fluid tests, cannabis breathalyzers, and cognitive impairment testing.