On October 17, 2018, the federal government’s Cannabis Act came into force, legalizing the use of recreational cannabis in Canada. This legislation has created new challenges for Canadian employers, who must now deal with concerns surrounding the use of cannabis and the possibility of impairment in the workplace.
ARE YOU AN EMPLOYER THAT HAS QUESTIONS ABOUT THE LEGALIZATION OF CANNABIS IN CANADA AND HOW THAT AFFECTS YOUR WORKPLACE AND EMPLOYEES?
Employers continue to have the right to ban the use of recreational cannabis in the workplace and to prohibit employees from working while impaired. However, there are several considerations and legal obligations that employers should keep top of mind as workplaces adapt to the legalization of cannabis in Canada.
REVISING EXISTING DRUG AND ALCOHOL POLICIES
Employers should conduct a thorough review and amend their substance abuse policies in order to ensure that the quality of work performed, and the safety of workers will not be impacted by recreational cannabis use. This can be done by building on existing policies already used to address drug and alcohol use. Generally, recreational cannabis can be treated in a similar manner to alcohol, while prescribed medicinal cannabis can be treated the same as other impairment-inducing medications. Clear rules banning recreational use of cannabis in the workplace should be established, and policies should include penalties for non-compliance. Once an employer has implemented their revised policy, all employees should be required to attend a mandatory training session in order to review it. After the training session, employees should be required to sign a commitment form confirming that they will respect the policy and that they understand its terms.
Drug and alcohol policies should require employees to disclose any use of prescribed impairment-inducing medication, such as medicinal cannabis. The process should be confidential and allow employees to disclose without fear of penalty. This is an essential component for effective policy, as employers have a duty to accommodate employees that have been prescribed medicinal marijuana. However, this duty must also be balanced with employers’ duty to foster a safe work environment for employees. Implementing policies that require employees to disclose the use of medicinal cannabis and ensuring that employees are aware of this requirement is key to successfully balancing these two duties, especially as the number of medical marijuana users continues to rise.
APPROPRIATE ACCOMMODATION FOR MEDICINAL MARIJUANA
Accommodation does not give an employee the right to be impaired at work or to pose a safety risk to themselves or others. The appropriate accommodation for medicinal marijuana will vary depending on the individual circumstances of each employee and what their position entails. However, in every circumstance, accommodation requires reasonable effort from both the employer and the employee to find an appropriate solution. The risks, costs, and safety of the employee and others must be considered for each case of accommodation. It is crucial that employers ask questions when employees disclose that they are using cannabis for medical purposes.
Employers must take a respectful approach and eliminate any barriers or disadvantages that the employee may face up until the point of “undue hardship” on the employer. In some cases, accommodation may require modification of the employee’s duties or work schedule, particularly in circumstances where an employee’s role involves safety sensitive duties. Extreme cases of accommodation could possibly allow an employee to perform his or her duties after smoking or ingesting marijuana so long as the duties can be adequately performed and are not safety sensitive.
THE IMPORTANCE OF TRAINING
As the effects of cannabis depend on the person, assessing impairment caused by the use of cannabis products is not an easy task, and it has been a significant challenge for both law enforcement and policy makers. Therefore, it is crucial for supervisors and managers to receive training on the recognition of impairment caused by cannabis use, in order to make these evaluations when necessary and ensure health and safety in the workplace.
RANDOM DRUG AND ALCOHOL TESTING
A 2013 Supreme Court of Canada case has already established that Canadian employers are not legally permitted to perform random drug or alcohol testing on its employees. Even in “highly safety sensitive” or “inherently dangerous” workplaces, an employer does not have the right to impose random testing on employees in the absence of a demonstrated problem with substance abuse. However, employers are permitted to test employees in dangerous workplaces in the following three circumstances: 1) when there are reasonable grounds to believe an employee was impaired while on duty, 2) when an employee was directly involved in a workplace accident or significant incident, and 3) when an employee returns to work after treatment for substance abuse.
Ultimately, employers must be proactive and protect their workplace in light of the legalization of recreational cannabis. Employers can seek assistance from experts, such as human resource teams and legal advisors, to ensure that they are taking the appropriate steps and fulfilling their legal obligations during this new era for Canadian employers.
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Disclaimer: This article is not intended to serve as, or should be construed as legal advice, and is only to provide general information. No portion or use of this article will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, please get in touch with us.