Canada: Five Key Considerations For Cannabis In The Workplace

Last Updated: July 20 2018
Article by Jillian Frank and Taylor Buckley

With the passing of the Medical Marijuana Access Regulations and subsequent Senate approval of the Cannabis Act, this article examines five key considerations of how the use of both medical and recreational cannabis may affect the employer-employee relationship.

1. Legal landscape

  • Legislation: The federal government has introduced legislation with the purpose of ending the prohibition against cannabis. Legalization will put cannabis on a roughly equal footing with alcohol. Relevant legislation includes:
    • Controlled Drugs and Substances Act – Prohibits possession, trafficking, import and export, and production of controlled substances, including cannabis, unless authorized by regulations
    • Access to Cannabis for Medical Purposes Regulations – Individuals with a medical need, and who have the authorization of their health care practitioner, can access cannabis in three ways. They can:
      • continue to access quality-controlled cannabis by registering with licensed producers;
      • register with Health Canada to produce a limited amount for their own medical purposes; or
      • designate someone else to produce it for them.
    • Bill C-45 an Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (Cannabis Act)
    • Cannabis Regulations SOR/2018-144
  • Timing: The federal government has announced that the Cannabis Act and Cannabis Regulations will come into force on October 17, 2018.
    • Current laws apply until the Cannabis Act comes into force.
    • Cannabis remains illegal unless expressly authorized under existing regulations.
  • Permitted activities: Under the Cannabis Act, adults will be able to legally possess, grow, process and purchase limited amounts of cannabis, subject to significant restrictions set out both in federal legislation and cannabis-related legislation passed by the provinces and territories.
  • Penalties:  Ticketing for possession that exceeds the personal limit by small amounts (Comparable to a traffic infraction); Up to 14 years in prison for illegal distribution or sale; Penalties – including up to 14 years in prison – for giving or selling cannabis to minors.
  • Public use: The proposed legislation includes an amendment to the Non-smokers' Health Act to generally align cannabis restrictions with those in place for tobacco smoking, including smoking restrictions in the workplace.

2. Workplace safety

  • From a workplace safety perspective, the legalization of cannabis does not change the general framework applicable to drugs and alcohol in the workplace (including testing, which is discussed below under "Privacy"). Employees are not entitled to be impaired at work or to compromise their safety or the safety of others.
  • Employers remain legally responsible for providing a safe workplace, which includes taking steps to ensure individuals who are impaired or whose ability to work is affected by cannabis do not remain on the work site.

3. Human rights / Duty to accommodate

  • Employers have a duty to accommodate employees who are legally using medicinal cannabis, to the point of undue hardship.
  • If approached by an employee seeking accommodation relating to the use of medicinal cannabis, employers should first confirm the employee's use is medically and legally authorized. Employers may require the employee to provide documentation of such authorization.
    • If so, then employers should seek out medical information to determine if the employee can safely continue performing his or her duties (from the employee's doctor or independent medical examination).
    • If the information reveals that the employee would be impaired while working, then the employer is likely not required to accommodate the employee's request, especially if the employee is in a safety-sensitive position.
  • If accommodation is required, some things to consider:
    • Should the employee be allowed to smoke in the workplace?
    • Could the employee ingest the cannabis in a different (legal) form?
    • Who at the company must know of the employee's use of medical cannabis?
    • Are there other suitable options to medical cannabis? Does the employee's condition require the use of cannabis products containing the psychoactive molecule THC?
  • Employees have a corresponding duty to cooperate in the accommodation process:
    • Employees must obtain appropriate medical authorization to use cannabis.
    • Employees must inform the employer of the use of cannabis.
    • Employees cannot expect or demand a perfect solution.

4. Privacy

  • Employers may not require employees to account for their history of off-duty cannabis use, unless there is an identifiable relationship to an impact on work performance.
  • Mandatory random testing that is unilaterally imposed (i.e., not bargained with a union) has generally been rejected by courts as an unjustified violation of employees' dignity and privacy, unless the employer can provide evidence of enhanced safety risks due to drug use in the workplace or of drug abuse in the workplace.
  • Drug testing may be justified by the reasonable operational needs of the employer, and employees' expectation of privacy may be diminished in light of safety concerns.
  • Results must be used in a manner consistent with the reasonable expectations of the individuals submitting to testing and consistent with the reasonable requirements of the employer.

5. Workplace policies and training

  • We recommend that employers review their policies and training materials, and update them as necessary to address the issues related to cannabis use (similar to alcohol and impairing prescription medication policies):
    • Set out the terms of acceptable use of prescription and non-prescription medication, including medical cannabis.
    • Indicate when employees are required to notify the employer of their use of prescription and non-prescription medication, including medical cannabis.
    • Outline the limits for impairment.
    • Prohibit coming to work impaired.
    • Determine and communicate the disciplinary consequences for breaches of the policy.
  • The messaging to employees should be clear: the legalization of cannabis does not change the employer's or employees' obligations to ensure a safe workplace and employees must not be impaired at the workplace.

Conclusion

The legalization of cannabis does little to change the obligations of employers and employees in the workplace. Employers remain obligated to ensure a safe workplace, accommodate cannabis prescriptions to the point of undue hardship and respect the privacy rights of employees. Employees remain obligated to not be impaired at work, work safely, and respect company policies.

It is important for employers to review their policies to ensure they effectively address legal cannabis and educate their employees about expectations around cannabis use and impairment in the workplace.

This overview of the legal framework and some of the implications of the legalization of cannabis in Canada is not intended to be an exhaustive summary of the law, but instead it is intended to highlight some main issues related to cannabis in the workplace.

About Dentons

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author.

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