Controlling Controlled Substances in the Workplace

In May of this year, our federal government passed an exemption to the Controlled Drugs and Substances Act to permit adults in B.C. to legally possess – for personal use - small amounts of certain controlled substances.  As was the case, a few years back, with the legalization of marijuana, this legislative change may have some implications for the workplace.

In her recent article, Katelin Dueck of Roper Greyell LLP provided an excellent overview of the exemption to the Act, and I heartily commend her article for reading, at https://ropergreyell.com/resource/british-columbia-exemption-from-the-controlled-drugs-and-substances-act-considerations-for-employers/

In essence, with some location-specific limitations, the exemption to the Act means it will be legal for adults to possess up to 2.5 grams of specific opioids, cocaine, methamphetamines and MDMA (ecstasy).  The exemption comes into effect on January 31, 2023.

Controlled Substances and the Workplace

Employers’ fear, of course, is that legalizing the possession of certain narcotics is going to increase the likelihood of possession of those substances, and impairment by them, at work.  As was the case when marijuana was legalized, I’m uncertain whether something truly disruptive for workplaces is about to occur or, at the other end of the spectrum, nothing at all will happen.

The legalization of marijuana ultimately caused barely a ripple in the workplace despite a lot of advance hand-wringing.  So, I’m approaching this recent change in the law relating to controlled substances with a wait-and-see attitude… I really doubt there are many people out there who have been waiting for just this sort of opportunity to start a narcotics habit.

The Status Quo

As was the case with the legalization of marijuana, it’s worth remembering that people use narcotics in a variety of ways, already.  Which means some members of your workforce are already using narcotics.  Which means the problem that could arise after January 31^st probably already exists. 

And, of course, all kinds of people consume prescription and other over-the-counter narcotics and medications every day.  Very, very few employers monitor employees’ use of such medications (I can’t recall a single instance of one of my clients ever informing me that it does so).  Very few employers know who is using them, which ones are being used, and whether they are producing any kind of impairment.

Impairment In The Workplace - Policies

Generally speaking, employees don’t seem to come to work in an impaired state (in my experience, anyway).  Having said that, workplace impairment is an issue and in any sort of a safety-sensitive setting can be extremely dangerous for the impaired employee, for his/her co-workers, and for the general public. 

That being the case, employers should be considering implementing policies addressing impairment in the workplace.

A well-written impairment policy will inform employees of their responsibility to assist the employer in ensuring that the workplace is, and remains, safe for everyone.  It will put them on notice that the employer does not condone the presence of impaired employees or the possession or consumption of intoxicants of any kind on company property, in company equipment or vehicles, or otherwise in the course of employees’ performance of their duties or representation of the company.

Employees’ responsibilities should be stated to include…

• taking reasonable care to protect their health and safety and the health and safety of other persons who may be affected by his/her acts or omissions at the workplace,

• ensuring that their ability to work without risk to their health or safety, or to the health or safety of any other person, is not impaired by alcohol, drugs or other causes, and

• reporting any actual or reasonably suspected contravention of the policy by any other person at the workplace.

The policy will prohibit…

• being present in the workplace while affected by, or under the influence of, alcohol or narcotics (legal, prescribed, or otherwise),

• consuming, at the workplace, any alcohol or narcotics (legal, prescribed, or otherwise) which might result in impairment,

• being present in the workplace when otherwise physically or mentally impaired and, as a result, unfit to perform employment duties in a safe manner, and

• promoting, offering for sale, or distributing any form of alcohol or narcotic at the workplace.

The policy will also assert the employer’s authority to require testing of the employee in appropriate circumstances and will warn employees of the ramifications of violating the policy.

An impairment policy isn’t necessarily the only thing employers may want to do before January 31^st, but it represents a very good first step.  And it may prove to be all they need. 

If your business doesn’t already have an impairment policy, now is the time to implement one, and we can assist you with that.

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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.