Many employers are wondering what level of tolerance they should implement for cannabis use in the workplace. What do they do if an employee is impaired on the job?
It’s important to recognize that just because marijuana is legal does not mean employees can be impaired in the workplace. Just like alcohol, it is not acceptable for an employee to be under the influence on company time, and this is very clear in the new laws.
However, zero tolerance may not be the best route unless employers can absolutely prove that sobriety is a bona fide occupational requirement. Otherwise, a dismissed or disciplined employee could file a human rights or wrongful dismissal lawsuit — and they may win. Employers should check with their lawyers for a case-by-case analysis of tolerance levels.
Some lawyers have recommended a “low-tolerance” policy: addressing the concern if and when it appears and only moving forward to dismissal when there is a repeat violation. Consider this: an employee goes out for lunch one day and has a couple of drinks before returning to work. If this becomes a regular occurrence and lowers performance, it may be necessary to have a conversation and move towards termination if the situation doesn’t change. However, the employee would likely not be immediately dismissed for a one-time occurrence. The same idea may be applicable to marijuana use.
In addition, employers must consider the use of medical marijuana. Cannabis consumption with a prescription has been legal since 1999 for the treatment of various disorders and conditions. While medical marijuana in the workplace may not be new, employers must be careful not to discriminate against these users with new tolerance policies. They must accommodate medical marijuana to the point of “undue hardship”. Consider asking these employees what accommodations they need and what tasks they are able to perform, and make any necessary changes to their duties.
2. Safety
In particular circumstances, employers do have the right to implement a zero-tolerance policy. In “safety sensitive” positions, such as those involving driving or the operation of heavy equipment, employees must be strictly sober for the protection of themselves and others. In these situations, employers can place a ban on cannabis consumption (similar to alcohol consumption) during work hours or in a designated time period before work begins.
Once again, employers are required to accommodate medical users. For example, an employee could be transferred to a different role that is not safety sensitive.
3. Drug testing
Testing for cannabis impairment has not been fully addressed by the government prior to legalization. There are a few key issues in this area:
THC (the component of marijuana that makes a user impaired) stays in the body much longer than other substances such as alcohol. Its presence in the body does not necessarily mean that the user is currently impaired.
The Charter of Rights and Freedoms would likely prevent any kind of random drug testing in the workplace from being lawful. This would be seen as an invasion of employees’ privacy rights.
Drug testing is currently only permitted in very specific employment situations, where safety is a key issue or there are reasonable grounds (for example, if there has been an incident or there is a strong reason to believe the employee is under the influence).
Until there are federal regulations in place to resolve these uncertainties, employers should be very cautious in implementing marijuana testing. In the meantime, they can use assessments of behavior and conduct in place of a hard test. If an employee is regularly underperforming and showing signs of impairment, it may be time to have a conversation. For a more in-depth discussion on drug testing in the workplace, check out this Huffington Post article.
4. Creating new policies
An employer should consider implementing new workplace policies to address the legalization of marijuana. After carefully constructing a tolerance policy considering all of the above factors, employers must ensure it is well-known. For example, employees could receive training on the new policy and marijuana use. The policy should also be displayed and distributed to each employee, perhaps through email.
The tolerance policy must clearly define what is acceptable and what behaviors may be grounds for disciplinary action or dismissal. Doing so ensures the employer will have a strong defence if and when actions are necessary.
Cannabis consumption must also be considered in other workplace policies, such as smoking in designated areas on company property and scent-free policies.
5. Marijuana Stigma
Many members of Canadian society may stereotype marijuana users. These users are assumed to look and behave in a certain way. Now that recreational cannabis is legal, these ideas may become stronger.
As an employer, be careful not to make assumptions about employees. While some managers may not agree with marijuana usage, it is now legally permitted. This means employees cannot be judged on their personal choice as long as it doesn’t impact their ability to do their job. There won’t necessarily be any of the attendance or performance issues that employers fear. Take these situations on a case-by-case basis, similar to any other performance problem.
In certain face-to-face professional settings, employee marijuana consumption may create reputational issues. In these circumstances, employers must carefully construct tolerance policies to find the balance between employees’ choices and customer opinions.
Whenever new legislation comes in, organizations as well as the rest of society must go through an adjustment period. While adapting to marijuana legalization, employers should consult with lawyers before making policy decisions or changes.
By carefully considering new policies and employee safety, employers are prepared to face the risks of cannabis legalization. Ideally, severe issues will not arise and employers can mainly continue as normal. But as in any risk situation, it always pays to be proactive.
Women in the workplace encounter particular safety risks that need to be addressed, including workplace violence and ill-fitting personal protective equipment, according to safety experts.
For example, women in industries such as health care and retail are significantly impacted by workplace violence, according to safety experts participating at the American Society of Safety Professionals’ Women’s Workplace Safety Summit in Rosemont, Illinois, on Monday.
According to the U.S. Bureau of Labor Statistics, 16,890 workers in private industry experienced trauma from nonfatal workplace violence in 2016; 70% of those employees were female, and 70% worked in the health care and social assistance industry.
Diana Stegall, ASSP president-elect and senior loss control consultant for workers compensation insurer United Heartland, otherwise known as United Wisconsin Insurance Co., a member of AF Group, said she sees claims data about the workplace violence injuries that happen in the health care and social services sector.
“Many times when we think about workplace violence, we think about it in terms of active shooter,” she said. “But when you look at the injuries that actually happen, many times it’s those people who were providing care. They get injured in providing care. It’s a huge issue.”
Meanwhile, 500 U.S. workers were workplace homicide victims in 2016, and 31% of them were working in a retail establishment, according to BLS data.
“We know about health care, but we sometimes forget about the retail portion where workplace violence takes place and the late-night gas and go’s,” said Sally Smart, technical safety specialist at W.W. Grainger Inc. based in Janesville, Wisconsin. The health care and social services and retail industries “are the ones who have unfortunately the most experience with workplace violence.”
One solution that emanated from a discussion group at the summit focusing on the workplace violence issue was to share the stories of the women impacted by workplace violence to raise awareness of the issue, Ms. Stegall said.
“Sometimes we become numb when we see one headline after another after another,” she said. “How does this really impact us as an organization? How does this impact us personally? What are those stories that show this can happen to you? It can and in many cases already is happening, and you may just not be aware of it.”
ASSP will also gather data on the workplace violence issue, including underreported verbal altercations, to create guidance documents or toolkits for employers to help them improve or develop their workplace violence prevention programs, Ms. Stegall said. The documents would address key issues such as safety culture, accountability and how to engage workers in the process, she said.
A separate group of experts participated in a discussion about another safety exposure for women in the workplace: ill-fitting personal protective equipment, or PPE.
“Ill-fitting PPE leads to increased hazards, increased injuries, and also affects productivity because of those two things, as well as (having) a psychological impact,” Ms. Smart said. “If you put a women in PPE and it doesn’t fit her … do they feel unprotected because it doesn’t fit right? Or more importantly, do they not wear it because it doesn’t fit? There are manufacturers who do make specific personal protective equipment for women, but not many. Sometimes employers don’t understand that. They sometimes go with one size fits all and it doesn’t.”
“With any of these issues, awareness is a big piece,” Ms. Stegall said. “A lot of the PPE that’s out there is developed for males based on data gathered from the military from the ’50s. Men in the military look a lot different than those outside of that demographic. Quite frankly, if we get (PPE) that’s more gender-diverse, it’s going to help men as well who don’t fit the standard ‘body type,’ because we’re not all the same size. How do we get the word out? Also, how do we let manufacturers know that just because we’re women doesn’t mean we want pink safety shoes and pink personal protective equipment?”
The summit also focused on the leadership of women in the occupational health and safety industry, with a discussion group highlighting the need for additional data on the issue and identifying potential sources of data as well as developing a problem statement, said Deborah Roy, corporate director of health, safety and wellness at L.L. Bean Inc. in Portland, Maine, and senior vice president on the ASSP board of directors.
“We feel there needs to be more of a baseline to begin work,” she said. “We need to identify between men and women what their leadership opportunities are, and we don’t have that data right now.”
“One of the gaps we identified was education, so we talked about what kind of training in leadership could be offered for women in OSH,” Ms. Roy added. “Quite honestly, we all acknowledged some of those things could be done for men as well.”
Cyberattacks cost the world more than natural disasters – US$3 trillion in 2015, a price that may climb to $6 trillion annually by 2021 if present trends continue. But most people – and even most businesses – don’t have insurance to protect themselves against this rising threat.
Insurance against all kinds of risks – disease, disaster, legal liability and more – is extremely common. In the U.S., companies, families and even government agencies paid a combined $2.7 trillion in insurance premiums in 2016 – and received payouts totaling $1.5 trillion. But just $2.5 billion – 0.09 percent of the total spending – went to buy insurance against cyberattacks and hacking. Elsewhere in the world, there’s even less coverage. For instance, in 2017 the cyber insurance market in India was $27.9 million, 0.04 percent of the total insurance premiums paid in the country that year.
Certain types of companies tend to have – or not have – cyber insurance. The larger the firm and the more closely it depends on computerized data, the more likely it is to have coverage against digital threats.
For a company, that can make sense, because a digital intrusion can cost hundreds of thousands or even millions of dollars to fix and recover from. For individuals, the costs of a breach are lower, but still significant – even as high as $5,000.
Regular people are far less likely to have digital protection than companies are. In India, personal cyber insurance is less than 1 percent of the total cyber insurance market. In the U.S. and elsewhere, most products are targeted at rich people. Insurers such as AIG, Chubb, Hartford Steam Boiler and NAS Insurance sell personal cyber insurance policies as add-ons to homeowners’ and renters’ insurance.
The insurance industry is doing more, too. A wide range of insurers such as Munich Re, AIG’s CyberEdge, Saga Home Insurance, Burns & Wilcox and Chubb all offer cyber insurance for individuals. These plans cover as much as $250,0000 to repair or replace damaged devices and to pay for expert advice and assistance if a cyberattack affects a policyholder. They may also include data recovery, credit monitoring services and efforts to undo identity theft.
Some ransomware attackers don’t actually decrypt the data, even if they get paid – but that hasn’t stopped victims from paying big bucks – at least $1 billion in 2016 alone. Even so, there are insurers who sell coverage against ransomware, providing backup and decryption services – or even paying the ransom.
Before cyber insurance becomes more common, however, the insurance industry will likely have to come to some consensus about what will and won’t be covered. At the moment each plan differs substantially – so customers must conduct a detailed assessment of their own risks to figure out what to buy. Few people know enough to be truly informed customers. Even insurance brokers don’t know enough about cyber risks to usefully help their clients.
In addition, because cybercrime is relatively new, insurers do not have much data on how much various types of cybersecurity problems can cost to fix or recover from. They therefore tend to be conservative and overcharge.
As people become better-informed about the digital dangers in their lives, and as insurance companies are able to more clearly explain – and more accurately price – their coverage options, the cyber insurance market will grow and may expand rapidly. In the meantime, most policies have some degree of custom design, so consumers should be careful to look for policies that actually cover their needs, and not just evaluate plans based on cost.
Risk managers can develop better risk management programs if they collaborate effectively with other departments, but first, they must win their colleagues’ trust, two risk management professionals said.
By adjusting how they communicate, risk managers can learn more about the concerns of other departments, explain possible solutions to problems and be viewed more as a business partner than a person who deters risk-taking, they said.
While many companies are either underinsured, overinsured or carry the wrong type of insurance, risk managers often feel that they are known as the “department of ‘no’” and that other department heads don’t tell them enough about the risks they face and, therefore, they are hampered in their job, said Liz Walker, director of enterprise risk and global insurance for Groupon Inc.
To solve that problem, she said, risk managers should take more ownership of the situation and ask: “How can I reduce or manage risk if I’m not communicating effectively?”
She was speaking during a session Monday at the Chicagoland Risk Forum, sponsored by the Chicago and Mid-Illinois chapters of the Risk & Insurance Management Society Inc.
“It’s about us. It’s about how we conduct our relationships internally and externally,” Ms. Walker said. Risk managers should generate trust and a sense of partnership with others at their organizations before they approach them about renewals, claims review and other risk management issues, she said.
To encourage trust, risk managers should adopt communications strategies that reflect their goals, such as using risk management to identify opportunities for business units, Ms. Walker said.
Or they can make clear how they can help colleagues through their insurance expertise, said Mary Friedl, insurance and claims manager at Redbox Automated Retail LLC in Oakbrook Terrace, Illinois, who introduces herself to colleagues as “the insurance nerd.”
“They know me now, and they know that if they need the insurance section of a contract reviewed to make sure it’s appropriate, they come to me,” she said.
Once risk managers have articulated how they can help people, they should ensure they are aligned with their organization’s values and strategy, develop and use a common language around those goals and values, and frame conversations with colleagues with those goals in mind, Ms. Walker said.
For example, rather than simply ask for total insured values at renewal times, risk managers should meet with facilities managers to let them know that they are looking to cover all property and equipment and ask about recent purchases and plans for the next year so they know the risk manager is seeking to align the coverage with their plans, she said.
Getting access to operating plans for different lines of business is also valuable for risk managers, she said. “It tells you not just what risks are coming up, but also what keeps your business partners up at night, which is a goldmine for potential opportunity to help them solve their problems,” she said.
Risk managers should also adjust the terms they use to reflect their audience, said Ms. Friedl. “Keep in mind who your audience is and what you want to get across to your audience.”
Risk managers can also use outside service providers, such as brokers, to help communicate with other managers within their organization, Ms. Walker said. For example, brokers offer training services where they come into an organization and talk about specific coverages and other issues that are relevant to various departments, she said.
Active shooter coverage available in the market can cover a wide variety of potential liabilities for employers whose workers, customers and others are impacted by such an incident, experts say.
Laura Zaroski, Chicago-based area senior vice president, law firms practice, for Arthur J. Gallagher & Co., said active shooter coverage, which primarily comes out of London, with a handful of domestic insurers, can include counseling, medical disability expenses for victims, funeral expenses, death benefits, and “loss of attraction” coverage, when a mass shooting results in a loss of revenue because people are no longer coming to the location of the incident.
She spoke during a session at the Professional Liability Underwriting Society’s conference in San Diego on Thursday as attendees were still absorbing the news of the shooting in a Thousand Oaks, California, bar Wednesday in which 12 victims and the gunman died.
Ms. Zaroski said other coverages include the cost of upgrading a building and its security, damages to a building, relocation costs and sometimes the cost of a teardown following an incident
Thomas Lookstein, New York-based head of financial and professional line claims for Starr Adjustment Services, a division of the Starr Cos., said one question that should be addressed is whether these policies have terrorism exclusions.
Marchelle M. Houston, senior vice president, bond and specialty insurance, for The Travelers Cos. Inc., said another potential claim is kidnap and ransom, where people are unable to leave a facility during an incident. You have to look at the host of allegations and policy terms and conditions to determine other insurance issues as well as exclusions, she said.
“We shouldn’t just be waiting for an event to do it for the first time,” said Ms. Zaroski also. “Let’s learn what to do and handle the situation before it arises.”
With the number of shooting incidents increasing, “more and more lawsuits are being brought against employers” in their wake, said Claudia A. Costa, a partner with Gordon Rees Scully Mansukhani LLP in New York, who moderated the session.
The U.S. Occupational Health and Safety Administration’s general duty clause states employers must have a place free of recognized hazards, and active shooting incidents are considered such a hazard, said Ms. Costa, adding her firm has been involved in defending some of these cases. Claims filed against employers in active shooter situations include negligence and failure to train workers, she said.
Other charges, she said, include negligent hiring and retention, which was an issue in the 2003 naval yard shooting in Washington that left 12 dead.
In that case, complaints from fellow employees that the shooter heard voices in his head were not addressed, and there had been a prior incident in which the shooter had shot through his ceiling to the apartment of a neighbor, she said. Bullying was cited as a factor in the 2015 San Bernardino shooting, in which 14 people were killed, said Ms. Costa.
