165 Cartwright Avenue, Toronto, Ontario M6A 1V5 Tel: 416-785-5110 | Fax: 416-785-5120 www.petomaccallum.com 25 Sandford Fleming Dr. Collingwood, ON L9Y 5A6 705-445-0005 4023 Meadowbrook Dr. London, ON N6L 1E5 519-203-7500 16 Franklin Street S Kitchener, ON N2C 1R4 519-893-7500 45 Burford Road Hamilton, ON L8E 3C6 905-561-2231 19 Churchill Drive Barrie, ON L4N 8Z5 705-734-3900 necessary – for an employer to treat employees who show signs of impairment differently than other employees. If impairment is suspected, supervisors should follow the A-WIDTH strategy: •  Assess employee through observation •  Request a witness to observe employee •  Interview employee (with witness present to confirm assessment) •  Document observations of suspected impairment If Impairment is Suspected: •  Consider drug and alcohol testing to rule out impairment due to drug or alcohol use, where a supervisor has reason- able cause and/or a safety incident has occurred; and, •  Always send the employee home (in safe transport.) Signs of Potential Impairment May Include: unusual or uncharac- teristic behaviour; odour of alcohol or drugs; glassy, bloodshot or red eyes; dilated pupils; unsteady gait; slurred speech; poor coordination; loss of alertness; and difficulty focusing or concentrating. Any behaviour that is a marked devia- tion from an employee’s normal presentation requires investigation by a supervisor. Ultimately, an investigation may conclude that an employee was not impaired due to alcohol or drugs, or that an employee is suffering from a substance abuse disorder and requires some form of accommodation. However, the employer’s primary responsi- bility (shared with employees and other workplace partners, including trade unions) is to keep the workplace safe. There is no protected “right” under any laws to be impaired at work, whatever the cause. Arbitrators and adjudicators will give deference to the documented observations of impairment from supervisors as justification for removing a potentially impaired employee from the work site. Take Action: Employers in safety-sensitive industries should consider implementing or updating existing fitness for duty policies and procedures. This also provides an opportunity for “refresher” training for supervisors and employees about impairment on the job, and an opportunity for employers and employees to recommit to keeping their workplaces safe. Jessica Kearsey is OF Counsel with Norton Rose Fulbright Canada LLP. (jessica.kearsey@nortonrosefulbright.com) LEGAL INSIGHTS 1.  Although the Cannabis Act is federal legislation, the provinces will have the power to determine the method of distribution and sale as well as the legal age for cannabis use. This is significant from a public policy and public health perspective, as data shows that distribution and sales of recreational cannabis may have a significant effect on the risks of abuse. 2.  “Assessing the Effects of Medical Marijuana Laws on Marijuana Use: The Devil is in the Details.” Pacula et al, October 2014, Journal of Policy Analysis and Management, Volume 34, Issue 1 (Winter 2015) 3.  Lower Churchill Transmission Construction Employers’ Association Inc. and IBEW, Local 1620, April 20, 2018 (Arbitrator John Roil, Q.C.) 4.  CCOHS, Workplace Strategies: Risk of Impairment from Cannabis – 2nd edition January/ February 2018 DSS: CC273-2/18-1E-PDF ISBN: 978-0-660-24755-7 5.  See https://www.coaa.ab.ca/ COAA-Library/SAF-CDM- CBP-01-2014-v5%20 Canadian%20Model.pdf 6.  http://www.rcmp-grc.gc.ca/ ts-sr/dree-eert-eng.htm Notes for this article and for further research: 32 UNDERGROUNDER Fall 2018