On April 13th, the federal Liberal government tabled the much anticipated Cannabis Act. While many recreational marijuana users now have reason to rejoice, employers across the country are left with unanswered questions as to how the upcoming legalization will affect the workplace.
It's important to note that although recreational use of cannabis is expected to become legal sometime during the summer of 2018, employees will still be required to show up « fit to work ». Therefore, it will remain possible for employers to discipline employees who are impaired by the use of marijuana while at work – with the exception of approved medical conditions.
The main problem which employers will face lies in the fact that THC levels (THC being the chemical component responsible for the effects associated with inhaling cannabis smoke) remain detectable for a long period of time following the absorption of marijuana. Therefore, when a drug test is administered to an employee, the detection of THC will be evidence of cannabis consumption by the employee. However, it will not necessarily be evidence that the consumption occurred recently or, more importantly, that the employee was impaired while performing his duties. With a potential increase in recreational use of cannabis among workers following legalization, litigation in such cases may also increase and could be costly for employers if they are required to demonstrate actual impairment using experts, medical or otherwise.
Employers would also be well advised to review their workplace policies and ensure that no mention is made of recreational use of cannabis as an illegal activity once the Cannabis Act comes into force. Basically, employers should equate recreational marijuana to alcohol. It will still be possible to forbid possession and use of recreational cannabis in the workplace.
Further questions will be raised regarding the relation between the recreational use of cannabis and safety sensitive positions. For example, in Québec, an employer has the obligation to take the necessary measures to protect the health and ensure the safety and physical well-being of its workers under the provincial Occupational Health and Safety Act. Considering the difficulty of proving actual impairment on the job (contrary to alcohol) because of the presence of THC in an employee's body long after consumption, can an employer condone the presence of a recreational cannabis user in a safety sensitive position without being in contravention of its duty to provide a safe working environment?
The Bill tabled last week does not provide answers to these important questions. We will keep our readers appraised of any developments on this subject in the near future.
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