Lexpert Magazine

LEXPERT MAGAZINE | JANUARY 2019 17 Health Canada's guidelines state that a person who uses cannabis can expect to experience its effects for up to 24 hours, she says, "but we know under certain circum- stances a person can expect to experience the effects for more than 24 hours. But that doesn't necessarily mean they're impaired." e effects of cannabis depend on the person, how oen they use cannabis (af- fecting their tolerance), and the strain of marijuana, "so it can be difficult to say whether a person using cannabis in their personal life is impaired going into work aer doing so." Yet while there may not be life-or- death consequences of impairment in non-safety-sensitive industries, there are still consequences. Take Deloitte Canada, which employs about 10,000 people and can be found working on some very large financial ad- visory, tax or consulting files. Impairment leading to a mistake could pose grave repu- tational risk. Nicole Broley, Deloitte's Assistant Gen- eral Counsel who is responsible for risk and litigation management, among other areas, says her company has simply added recrea- tional cannabis to its existing drug and alco- hol policy — an approach many non-safety- sensitive corporations are using. "We prohibit the use of cannabis in any kind if work function, at work, at client sites," she says. "If you're engaged in work for Deloitte, you're prohibited from using cannabis." Deloitte Canada doesn't police employ- ees' off-work recreational drug use, she says, "but we are saying that to the extent you're travelling for work, at work-related courses, at client sites or anything that could be con- sidered part of your work, you're prohibited from using it unless there's a medical ac- commodation required." Deloitte works on many of the top deals in the country, and its reputation rests on its advice. Like Air Canada's Shapiro, Brol- ey considers the inability to identify mari- juana impairment in the workplace with "We prohibit the use of cannabis in any kind if work function, at work, at client sites," she says. "If you're engaged in work or Deloitte, you're prohibited from using cannabis." spot testing "a very valid concern." Enforcement of policy can be difficult in broader environments. e University of Calgary, for example, has completely banned the use of recreational cannabis on campus. Asked how that's enforced, Lor- ian Hardcastle, an assistant professor in the University of Calgary's law school says, "it's not, really." Even if a university official catches someone regularly smoking pot on campus and calls the police, the person would face just a ticket. Hardcastle, who also has a joint ap- pointment with the university's school of medicine, says that "we've been dealing … for years" in regulating impairment among doctors and other heath-care professionals. "Drug addiction among doctors generally is certainly high, but I don't thing there's a dramatically high rate of people being injured by doctors coming to work intoxi- cated or impaired on legal drugs, so I don't think we need to completely ban it." For a company grappling with a policy, what constitutes best practice? Pink Larkin's Houlihan says it is as sim- ple as having a policy, communicating it to employees, and then enforcing it. Her firms is advising those organizations with union- ized workers to involve the union before any new policy is finalized. "In a lot of cases where the employ- ers are being reasonable, they're reaching agreements. Where they're running into problems is where employers are being over- reaching, and trying to establish policies that try and govern employees' time away from work where there's no clear nexus with their employment." Deloitte's Broley believes that in five years from now there will be more effective testing devices and the effects of cannabis will be much better understood — which means marijuana impairment policies will likely become more sophisticated. "Probably we're all going to be far better educated." NICOLE BROLEY ASSISTANT GENERAL COUNSEL, DELOITTE COVER STORY FEATURES Sandra Rubin is a business journalist based in Toronto.

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