W hat’s new for impairment on the job? Construction employers across the country are closely following the legalization of recreational cannabis use in Canada. Data from jurisdictions where recreational use has been legalized suggests that legalization may lead to a general increase in consumption of cannabis in the general adult population. This means that employers, such as construction employers, who work in safety-sensitive industries, will need to implement or update existing fitness for duty policies and procedures to deal with the anticipated increased risk of employees reporting to work impaired due to recreational cannabis use. Addressing impairment on the job due to “legal” impairing substances like alcohol and prescription opioids is not a new problem for employers in safety-sensitive indus- tries in Canada. What is potentially new, however, is that if recreational cannabis use gains popularity as an “opioid alternative,” and/or recre- ational cannabis use correlates with increased rates of alcohol or other substance abuse in the general adult population, the legalization of recreational cannabis use will constitute a particular challenge for employers seeking to manage the risk of impairment on the job. Impairment and Cannabis: Medical cannabis use has been legal in Canada since 2001. Employers across Canada in safety- sensitive industries have been faced with the legal requirement to accommodate medical cannabis use, and its impairing effects, on the job as part of an overall accom- modation of an employee who requires medical cannabis to treat a disabling condition. A recent case in Newfoundland & Labrador shows that this accommodation may pose an “undue hardship” to employers in such industries, because the impairing effects of cannabis are more difficult to measure than other substances, like alcohol. This makes managing the risk of having an impaired worker in a safety-sensitive job all the more challenging. The Arbitrator notes that the objective of either medical or recreational cannabis use is impairment – achieving impair- ment is what cannabis is used for. The decision quotes guidelines for medical professionals from Health Canada suggesting that impair- ment from cannabis use may last for 24 hours after consumption. Some U.S. research suggests the impairing effects may last much longer. Additionally, research LEGAL INSIGHTS FITNESS FOR DUTY: WHAT OSWCA MEMBERS NEED TO KNOW BY JESSICA KEARSEY Tips and Strategies for Implementing or Updating Existing Fitness for Duty Policies and Procedures suggests that the method of consumption may also make a difference: ingestibles and inhala- tion may metabolize differently in the body, as the former has to pass through the digestive system first. Research has also shown wide vari- ance in THC concentration levels in medical cannabis. WORKPLACE SAFETY FIRST Occupational Health and Safety legislation across Canada requires employers to provide a safe work environment and take all reasonable precautions to protect the health and safety of employees and others in the workplace. Part of an employer’s due diligence in meeting this obligation is the estab- lishment of policies, programs, and procedures to address impairment from any source, including recreational cannabis use, and a rigorous training program for supervisors and employees based on those policies. Most template fitness for duty poli- cies generally follow this format: 1.  Statement of Objective/ Purpose of Policy 2. Definitions/Key Terms 3. Duty to self report* 4.  Human Rights & Accommodation 30 UNDERGROUNDER Fall 2018