Cannabis and Contractors – What You Need to Know

Cannabis and Contractors – What You Need to Know

Written by Anne-Sophie Tétreault at Cognibox

Impairment in the workplace is nothing new. However, it gained increased relevance last October when Canada legalized the use of recreational cannabis. 

According to a recent survey from the Government of Canada, 8 per cent of people surveyed reported using cannabis before or at work weekly or more often and 15 per cent reported using cannabis before or at work rarely (less than once a month).  While ‘before work’ may be hours before someone arrives at work, it is the ‘at work’ part of the statistic that should most inform your actions when it comes to dealing with cannabis in the workplace.  And although these numbers may seem small at present, many are anticipating them to grow as society becomes more accustomed to the idea of legal recreational cannabis.

Cannabis impairment and its effects can put your workers at grave risk.  The effects of cannabis usage can include a distorted sense of time, impaired memory, and impaired coordination which – when combined with already risky tasks – has the potential to put workers’ lives into further danger – and that includes contractors.

But even if you already have a policy on workplace impairment, it’s something worth revisiting – or writing – now that recreational cannabis has been legalized.  As legal recreational cannabis becomes more rooted in our society, it will become necessary for employers and HR managers to create or revise workplace systems that will keep their workers and contractors safe, if even from their own consumption habits.

Who is responsible for what?

What is the responsibility of an organization and its staff regarding cannabis use at work?  In many cases the obligations and responsibilities of employers regarding cannabis are the same as those regarding health and safety in general. 

The Canadian Centre for Occupational Health and Safety clearly lays out the responsibilities for employers, managers, supervisors, and employees when it comes to operating in a safe workplace.

Employers have the responsibility to: 

• Take every reasonable precaution to ensure the workplace is safe, including preventing the hazards that come with impairment at work.

Managers and supervisors have the responsibility to:

• Advise workers of potential and actual hazards, including the hazards of impairment at work.
• Provide workers with written instructions as to the measures and procedures to be taken for protection of the worker, such as a workplace drug policy.
• Take every reasonable precaution in the circumstances for the protection of workers.  This could mean removing someone from their work if impairment has put them at risk.

Employees have the responsibility to: 

• Report workplace hazards and dangers to the supervisor or employer.  This is not about betraying colleagues, but rather about keeping them safe when their safety could be at risk as a result of cannabis impairment.
• Work in a safe manner as required by the employer, such as obeying the provisions set out in a workplace drug policy.

And while this is all pretty clearly laid out, there is still the question as to where does this all leave contractors?

Cannabis and contractors

Provincial and territorial labour legislation will explain what contractors are classified for each region.  As an example, in Ontario the definition of a worker is “a person who performs work or supplies services for monetary compensation”, including contractors and sub-contractors.

During the day-to-day course of operations, however, working with contractors can be much different than working with employees.  The relationship between employer and contractor – or subcontractor – is less consistent, with employer and contractor often more distanced than employer and worker.  This means that there is often a greater challenge for employers to have a clear sense of what contractors are up to, including their possible level of impairment.

This is especially true in industries like mining and forestry, where many dangerous job tasks are outsourced to contractors.  This puts contractors at a greater risk. Combine that with potential cannabis impairment and the danger compounds. 

For example, the Ontario Occupational Health and Safety Act, in acknowledging the high level of risk involved in mining, has laid out the following provisions regarding drug use and impairment:

Under section 15:

(1) No person under the influence of, or carrying, intoxicating liquor, shall enter or knowingly be permitted to enter a mine or mining plant.

(2) Subject to subsection (3), no person under the influence of, or carrying, a drug or narcotic substance shall enter or knowingly be permitted to enter a mine or mining plant. 

(3) A person required to use a prescription drug and able to perform his or her work may enter a mine or mining plant upon establishing medical proof thereof.

One way to counter these behaviours and the dangers that come with them is to use a contractor management tool.  A contractor management tool will allow you to pre-qualify contractors based on criteria of your own choosing, such as having its own workplace impairment policy and a track record of compliance with your workplace impairment policy. 

Contractor management tools can also help you make sure that contractors, who spend much less time in your work environment, are up to speed on your policies and procedures – including workplace impairment policy.  You can set up a system so that contractors and their workers have to review and sign off on your policies before being granted access to the job site.  Systems like this can keep everyone informed and – most importantly – safe.

Cover your bases and create a policy that includes contractors

In 2018 the Canadian Centre for Substance Use and Addiction (CCSA)reviewed workplace substance use policies in Canada and offered suggestions for key components these policies should contain. 

They are as follows:

Objectives and scope – Clearly outline the purpose and goal of the policy, who it applies to, and the organization’s position on substance use in the workplace.  It should also include parameters for where and when the policy applies, as well as the responsibilities and expectations of employers, managers, supervisors, and workers. 

Prevention – Clearly outline any strategies you have to “help reduce and deter drug use”.  This could include education and training designed to influence workplace culture. 

Observation and investigation – Clearly outline the parameters for observation of drug use, including the behaviours and performance indicators you will look for as signs of potential impairment.  This section should also outline the process for investigating possible drug use or impairment, which can include workplace drug testing or screening processes. 

Drug testing in the workplace can be contentious.  While some trade unions have contested the practice in court, it has also been argued that it is not always a violation of human rights.  Currently in Canada, drug testing is appropriate only in limited circumstances and only to measure present impairment.  It should also be noted that current drug testing methods will only detect recent use and will not indicate cannabis impairment.  In all cases, employers should proceed cautiously and evaluate the appropriate action on a case by case basis.

When working with contractors, it is important to ensure that the contractor reads your workplace impairment policy, and, if it contains provisions about testing, that the contractor has been informed about which types of tests could be performed and under which circumstances.  You can also ask your contractors about their own workplace impairment policy, and specifically what it says about testing; this will at least attract their attention to the necessity of planning ahead even on this contentious issue, and not wait to improvise once a case is suspected.

Support – This section offers an opportunity to explain the different types of support you might offer workers or contractors dealing substance use or addiction.  This can include a review of policies, interventions or general health checks, counselling, or Employee Assistance Programs.

Return to duty/work – In some cases, drug use does not mean that a person has a dependency, particularly if a contractor or their worker uses cannabis for a medical purpose.  Employers have a duty to accommodate their workers as they return to work, which makes an acknowledgement of that commitment in this section integral.  This section can also include the general condition that workers can return to work under and should leave room to create individual plans for workers on a case-by-case basis, while acknowledging that impairment at work remains unacceptable.

Non-compliance – This section often outlines what is considered a violation of the policy and clearly states the employer’s procedures for enforcing the consequences of confirmed violations.

State what will happen to the contractor and to its worker in the instance that the worker is found to have been impaired when working on your site. This could include the conditions under which you might prohibit your facility access to a contractor and/or a contractor worker for a specific time period or permanently.

Both of these consequences (contractor or worker) can be enforced using a contractor management tool.  You can disqualify a contractor and ban its worker in the contractor management tool, for any given time duration in line with your policy, eliminating miscommunication and gaps in knowledge about a given contractor and its worker, and their employment status.

Review and evaluation – This section should outline the conditions, timeline, and process for reviewing and updating the policy.  There is no one size fits all option here – rather, each organization should create a system that works best for them.

Legal requirements – Any provincial, territorial, or federal legal standards should be acknowledged and incorporated into the appropriate sections of the policy.

In each of these components you’ll want to make sure to look at it from a contractor’s perspective and include them in the policy so that their safety is also involved.  Also consider including instructions that explicitly address the use of recreational cannabis.  A thorough policy can set a positive tone for workplace behavior and help prevent any issues that might arise.

With the recent legalization of recreational cannabis, organizations are looking to adapt their processes and policies to address cannabis use and impairment in the workplace.  Creating a comprehensive policy that addresses these issues is a prudent move, but, if you work with contractors, you can’t forget about them.  Including contractors in your cannabis reviews of your workplace impairment policy and using a tool to enforce your policy will keep all workers safe, ensuring that the work – and your organization – can continue to thrive.