By Cole Parkinson
With the legalization of cannabis becoming official last month, Horizon School Division is still tweaking some of their policies in regard to dealing with the change.
One addition brought forward to the board is Policy IFCH Illicit Substances which prohibits the possession, use, distribution or sale of alcohol, tobacco, cannabis, or drugs by students, staff or visitors when on school property.
“Most people are aware that, of course, cannabis has been legalized within Canada. There is variation between provinces and between municipalities. I know the board is very pro-active in terms of altering policy to address the federal changes so the board had made changes to an existing policy around smoke-free environment, for example. This more or less indicated the presence of cannabis in schools is prohibited,” said Wilco Tymensen, superintendent of schools during the Horizon board’s regular meeting on October 24.
According to Tymensen, a large percentage of the policy comes from documents provided from legal counsel.
“A number of dialogues have occurred with senior leadership and trustees around the province over the last year or so. I know a number of boards have reached out to legal counsel to look for some draft policies for specifically this regard. For the most part, if you look at our policy, huge portions are actually taken from the document provided by lawyers. There are some changes however because some school divisions keep things separate, in the sense of staff versus students, school conduct. Some did not address accommodation within their policy, they address it with other administrative procedures. Keep in mind, some schools only have 10 policies and a whole bunch of administrative procedures,” he explained. “Some of the differences in our policy versus the legal documents that were provided is that our old policy was fairly brief. It would have been three or four bullets and it did not fully address the legal requirements for school divisions or any employer. It was totally silent on medical accommodations and under the Human Rights Act, there is a legal duty to accommodate when you deal with drugs including cannabis, in terms of medical accommodations. So there is no legal accommodation, there is no legal requirement for employers to accommodate recreational users but there are things to work through with medical requirements. When those things happen, you have an individual who is dealing with a terminal illness or chronic pain, there is an accommodation process we would normally work through.”
While the policy is new for the division and cannabis is legal, things don’t really change much.
Much like before, any drugs and alcohol will not be allowed on any school premises within Horizon School Division.
“When you look at the notion of tobacco and cannabis, a week ago before it was legal, you would not be able to have alcohol on campus as an example. Now after this date, you still can’t have alcohol on campus, it’s very similar with cannabis. You couldn’t have tobacco, you couldn’t come to school with a mickey of vodka or a container of cannabis and you still can’t. For students, really there is no change in that regard,” stated Tymensen, who also highlighted the fact medical marijuana also is under similar rules. “Because you have medical accommodation, you do not have the right to come to work impaired, medical accommodation or not. At that point, you are unfit for work and are not able to attend work. When you look at the policy, it does address the notion of medication, both staff and students. Ultimately, when it is approved with final reading, there are two other policies we had. One was on medication of students and one was on tobacco. Those two would be deleted and this would replace both of those.”
One portion pointed to by Tymensen revolved around self-declaration of staff and students who would be required to disclose any addictions to their principal or the superintendent.
Failing to inform a superior of any addictions, it could be grounds for termination.
“This policy addresses both students and staff in terms of the legality of items. It addresses both legal and illegal drugs, keeping in mind that it also talks about medication. The key piece in here is there is a shift in practice around self-declaration. There have been cases where people have been fired for using drugs and they may be addicted or they have a medical condition where they are warranted to use those medications or drugs and it has gone to the Human Rights Tribunal, some have gone all the way to the Supreme Court. In most, if not all cases, if you were to terminate somebody for addiction as an example, you would probably lose because there are requirements to provide accommodations,” continued Tymensen. “If you inform them that you are using, there is an accommodation process that would be put in place for them to accommodate those pieces. What we’ve done in our policy is, we have included an acknowledgement that given that it is a significant shift, we felt there would be a one-time acknowledgement where employees would basically state they are aware of the changes and shift in the policy and recognizing there are some duties they need to comply with.”
While the policy does cover quite a bit, one thing they did not feel the need to include at the moment was drug testing.
Some divisions around the area have included that in their policies but Horizon felt it wasn’t necessary at this point, though if they wanted to add it later on, they could.
“The other piece, where we did not go in our policy and I know some school divisions did, Holy Spirit is one of them, is that we did not address the notion of testing our employees. There are some jurisdictions in the south, and it is my understanding, that in their policies they are including the notion of testing for illegal substances in employees or they reserve the right to take urine samples as an example. They talk within their policies specifically what that looks like and how it is done. Given that a lot of those tests at this point in time, in my mind, how accurate are they? Can they be held up in court? At this time I felt that it wasn’t warranted including that in the policy given the fact we can always add that when the policy is reviewed in the future,” said Tymensen.
While the policy talks about the use of drugs or alcohol negatively affecting job performance, student learning or the climate of the school jurisdiction, the board had questions around the enforcement of that wording.
“Who determines when this is negatively affecting the person’s job performance?” asked Bruce Francis, vice-chair of the Horizon board.
While it was hard to provide an exact answer on how to determine if usage was negatively affecting a person, Tymensen explained there would be a process involved.
“What I would say is, lawyers would have pushed it further than normal. Ultimately there would be, whether it is cannabis or alcohol or tobacco, my assumption would be it would go to court, not necessarily our policy but policies in general,” he said. “The question becomes, at what point does it leave your system? My understanding is that it can stay in your system for several weeks so the question becomes at what point does that negatively affect you? Having those pieces in your policy allows you the opportunity to say ‘you are using things that are having a negative impact when you are coming to work.’”
With legalization now official, Tymensen also touched on the fact they didn’t want to encroach on people’s lives when out of work hours, especially if they were partaking in legal activities.
“We certainly don’t want to restrict individual’s activities outside of work hours that are legal. The issue will be what happens with cannabis? Can an employee go home and light up, so to speak, and come to work the next day? Ultimately, as an employer, what right do you have to say yes or no because they have a job frame where they are under your direction and you don’t have that 24-hours a day. If you are under the influence when you come back to work, the answer is no. We don’t allow you to come to work drunk, we do not allow you to come to work stoned,” he explained.
A motion was made to approve first reading of the policy and was passed unanimously.