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
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
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.
About Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global law firm. We provide the
world's preeminent corporations and financial institutions with
a full business law service. We have 3800 lawyers and other legal
staff based in more than 50 cities across Europe, the United
States, Canada, Latin America, Asia, Australia, Africa, the Middle
East and Central Asia.
Recognized for our industry focus, we are strong across all the
key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
Last week, in a both exciting and sobering press release, Canada announced a plan to fully "legalize, strictly regulate and restrict access" to cannabis in the Great White North. The release starts bluntly: "The current approach to cannabis does not work."
The Federal Court dismissed Apotex's application for judicial review of the Minister of Health's (Minister's) decision to require additional information from Apotex as part of its Notice of Compliance (NOC) submissions for certain drugs manufactured in India by Apotex affiliates.
The end of 2016 brought with it some good news for the defence in respect of pharmaceutical class actions, including a successful defence verdict in the first pharmaceutical product liability common issues trial in Canada.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).