Employers must carefully evaluate whether any drug policy or drug testing program is job-related and to examine the job-related reasons for taking an adverse action on employees that use substances.

Note: This article contains 988 words and 1 image, with an estimated read time of 4 minutes.

The Canadian government recently announced the legalization of cannabis for non-medical use. This significant and rapid change to the legal status of cannabis raises new challenges and questions for Canadian employers. It is expected that there will be a major increase in the consumption of cannabis for non-medical purposes post-legalization.

A survey conducted by Deloitte revealed that an estimated 22% of the Canadian adult population consumes recreational cannabis on an occasional basis while about 17% will be willing to try it out if it were legal. This brings the figure to about 40% of the adult population. Furthermore, a significant increase in the number of cannabis users in some states in the United States where recreational use is legal indicates that there’s a possibility that the number of Canadians using cannabis will increase after full legalization.

There has been quite a number of articles discussing the implications of the legalization of cannabis in the workplace. Organizations are encouraged to revisit their policies to update the rules governing the use of substances in the workplace. Interesti ngly, some provincial statutes and court decisions hold that an employer cannot discriminate against an employee simply for using a substance for medical or non-medical purposes. And because laws guiding the use of cannabis are relatively new, most provinces have not had the opportunity for judicial interpretation of these laws, especially in the workplace context. In light of this, employers must carefully evaluate whether any drug policy or drug testing program is job-related and to examine the job-related reasons for taking an adverse action on employees that use substances. 

Cannabis in the United States of America

Some states in the United States protect an employee from adverse employment actions based on the off-the-job use of cannabis. The state of Maine is the first jurisdiction to enforce the protection of employee’s rights in the off-the-job use of cannabis. However, this may be an emerging trend that could be adopted by other states. For instance, a Wisconsin state representative lately introduced a bill that would also forbid drug testing for Cannabis for most jobs. The Maine law also prevents an employer from denying an applicant employment simply based on a positive drug screen especially under state laws that have legalized the use of cannabis for medical and non-medical uses.

In fact, in some states, employers may face liability for discrimination or taking adverse employment action based on an employee’s use of substances. A court in Connecticut recently concluded that Federal Laws prohibiting cannabis possession and use did not exclude enforcement of PUMA, which prevented employers from refusing to hire or fire someone simply because they use substances. These cases demonstrate that employers should tread carefully especially when it comes to ensuring a safe and drug-free workplace and unlawfully discriminating against applicants and employees in violation of various state laws.

Drug Testing

Moreover, drug testing evidence employed by most organizations is often misleading. It does not necessarily say anything about how long employees have used the drug, whether they are addicted to it, whether or not they use it during work hours or if it affects their performance.

Even when these tests are reasonably accurate, the disciplinary measures often adopted by managers are usually ineffective in preventing impaired job performance. There are cases where employees are laid off because test results indicated cannabis use weeks earlier. Individuals are denied job opportunities even though drugs have not affected their behaviour or performance. Not only is drug testing time consuming, but it is also not necessarily cost-effective, therefore employers should focus on crucial aspects of the business.

Focusing on the Job Performance

Whether an employee uses substances or not should not be the focus of the employer. Regardless of substance use, the underlying key performance indicator (KPI) is how productive and efficient employees are in performing the task they were hired to do. Instead of concentrating your efforts on irrelevant items, Leaders and organizations should focus on supporting their employees to meet the expectations and improve their job performance.

Emphasis should be placed on key high-performance habits to identify opportunities for poor performance, provide feedback, collaborate on action items to improve, provide an opportunity for an employee to meet their commitments of improving, and follow up with feedback to capture improvements. Your job as a leader is to ensure that your employees grow their talents and maximize their potential. You’re ultimately responsible for creating a work environment which motivates, empowers and promotes employee engagement.

Often times when productivity suffers at work, the root cause is not about the use of substances or related causes. It’s often a function of things like dissatisfied employees, conflicting priorities, lack of training, unclear expectations, lack of the right tools etc. All these can get in the way of employee productivity and affect their job performance.

Bottom Line

Instead of needlessly wasting time debating issues that are not overly relevant, managers and supervisors should work hard to identify the root cause of decreased productivity. This will help you to uncover the path to maximum productivity. Once you’re able to identify the reason for underperformance, then you can think about practical steps to improve efficiency and productivity. Make no mistake, substance use such as cannabis might play a role in underperformance at work, it just doesn’t have to be the first source and or initial focus.