Canada: Legalized Cannabis: Employer FAQs

Last Updated: September 17 2018
Article by Employer Advisor and Shana Wolch

Most Read Contributor in Canada, September 2018

Recreational use of cannabis in Canada will be legal as of October 17, 2018. Both employees and employers have questions about the ways in which legalization might impact their workplaces. This Q&A is intended to assist employers in both anticipating questions and considering changes to work rules, policies and procedures.

It is recommended that employers:

  • Review and amend existing workplace policies and procedures to meet health and safety obligations once the Cannabis Act comes into force.
  • Conduct a hazard and job-safety assessment to determine the safety sensitive jobs.
  • Ensure employees review copies of the new workplace policies.
  • Hold training sessions for all employees.
  • Ensure management is trained on how to identify signs of impairment, and how to respond appropriately.
  • Review policies periodically and as necessary.
  • Keep in mind that workplace approaches will vary and business partners, customers, etc., might have different policies and permissions when it comes to possession and consumption.
  • Keep in mind that cannabis is still one of many mood or mind altering substances, from over the counter or prescription drugs, to alcohol, to illicit substances.
  • Consider testing methodologies for safety sensitive workers, and in particular choosing oral swab or those that show current impairment in order to keep up with the anticipated increase in recreational use and the tighter scrutiny from adjudicators in accepting positive test results in relation to the discipline of a worker.
  • Keep in mind that legalized cannabis has limits, including current prohibition on methods of consumption (e.g. edibles) and on amounts for possession.

Anticipated employee questions:

1. I am a recreational user. Do I have to tell my employer?

The starting place is no. An employer cannot directly regulate its employees' off duty activities. However, the legalization of cannabis does not suddenly give employees the right to freely use cannabis in the workplace or come to work adversely impacted by its use. An employer can expect its employees to show up to work fit for duty and able to perform their duties in a safe and effective manner. Disclosure may become relevant if an incident occurs and there is a resulting investigation, or if an employee wants to consume cannabis at work-related events or activities. Employers have the ability to implement policies to prevent alcohol and drug use in the workplace. Employers can also manage safety risks in the workplace by implementing a drug policy that encourages or even requires employees to proactively disclose drug addictions before breaching the policy.

2. Can I consume cannabis recreationally before or during my shift, or on one of my breaks?

Many employees will compare consuming cannabis to drinking alcohol. A restriction on its use or possession in the workplace may be questioned particularly in workplaces situations where alcohol is permitted (e.g., customer lunches, social events, conferences, etc.). Regardless, employers are entitled to restrict the use of cannabis at the workplace, and many might since its impact and lasting effects are not yet well understood. Employers can also insist that employees refrain from using cannabis (similar to any mood or mind altering substance) in a manner that adversely affects their ability to safely or productively perform their jobs, and the interpretation of "adversely" will vary depending on the employer's type of business.

3. How many hours before my shift can I consume cannabis?

Employers are not well suited at this time to respond to this question. An employer cannot assess the duration or extent of the impact that cannabis will have on its employees. Employers can insist that employees refrain from using cannabis (similar to any mood or mind altering substance) in a manner that adversely affects their ability to safely or productively perform their jobs, and the interpretation of "adversely" will vary depending on the employer's type of business.

4. I understand that I cannot consume at work, but can I have it in my possession at work?

Some employers will allow cannabis at the workplace, like unopened alcohol, if it is controlled, un-accessed and out of sight. Other employers will prohibit possession of cannabis at work, particularly in safety sensitive workplaces or where there is a prohibition on consumption.  Possession makes access and use easier; however, simultaneously, we expect that cannabis will become more normal when it comes to gift giving, gift getting, dinner party items, and the like, which requires transport potentially during or after the work day. Employers will need to consider whether any cannabis accidently brought to the workplace by an employee will be discarded or safely stored off the work premises in a secure location. If the employer chooses to discard the item, employers should ensure employees have expressly and properly accepted that the employer can take and discard the substance if they are brought to the workplace. Employers also have to consider what their policies will be, if at the time of collection of a substance in contravention of a policy, the employee revokes their consent to the taking and discarding of the substance.

5. What if a customer gives it to me as a gift, similar to being gifted a bottle of wine or chocolates filled with wine?

Employers and employees may receive a bottle of wine or alcohol as a gift of gratitude, for holidays and so forth. Employers will need to consider their rules for receiving wine and whether the same rules will apply to gifts of cannabis. Controls and restrictions on access and use can be in place to enable the receipt of these gifts in workplaces where use or possession of cannabis might otherwise be prohibited.

6. My position requires me to socialise with my customers. If my customer offers me cannabis, or if they are all doing it, am I allowed to partake?

In some industries employers might be OK with allowing consumption during certain social exceptions, and those employers should consider fitness for duty policies and rules about boundaries, limits and maintaining professionalism. Employers need to recognize that use will become normal and more socially acceptable.  Still, employers will need to ensure that their work rules align with their obligations to health and safety, privacy and human rights laws, which will become of heightened importance to safety sensitive industries.

7. What about wearing clothing that shows or promotes cannabis at work, or outside of work when I am representing the company?

Many employers have casual Fridays or otherwise allow for business casual attire. Other employers allow their employees to dress leisurely and casually.  Employers can require employees to dress in a professional and conservative manner, which includes limiting pictures and logos.  However, employers ought to consider taking a consistent approach to logos of varying natures, and whether any particular logo is offside other workplace rules.

8. Does the company have any objections to me having paraphernalia at work?

This will depend on an employer's workplace policies. If there is a site ban of drugs and alcohol in place, it is expected that an employer will include the possession of paraphernalia in their bans. It is expected that employers who restrict the use and possession of cannabis will also restrict the possession of paraphernalia as it facilitates the use of cannabis at the workplace and may carry odors.

9. What if I am on call but not working?

Most employers with on call employees will already have policies in place about remaining or being fit for work. Some employers will have strict policies about remaining fit for duty while on call and being able to report to work, fit for duty, if they are called in. Other employers will have policies that do not require the employee to remain fit for work while on call, however will require the employee to disclose they are unfit should they be called in for duty and refuse the work without reprisal. Employers must be mindful of privacy rights when requiring an employee to disclose if they are unfit for work, which includes considering the extent of the information they collect. Existing policies should be reviewed to ensure that they do not subsume cannabis in the definition of illicit drugs/substances once it is legalized.

10. Do I need to tell anyone if I witness or become aware of someone consuming during working hours or on company property?

Employers have the right to require employees to tell their employers if they witness or become aware of someone consuming during working hours or on company property in order to protect the workplace and prevent health and safety hazards. It is recommended that employers provide training to management on how to identify signs of consumption and impairment and how to respond appropriately. Employers should ensure that their policies are aligned with these requirements (e.g., whether consumption during working hours is prohibited).

11. How can you tell me you have zero tolerance for cannabis in my system when it is legal?

Employers could face greater use of cannabis by employees once it becomes legal.  Employers with safety sensitive workforces may insist on a zero tolerance approach. However, with increasing use it could become more problematic particularly when it comes to employees using on their days off.  Employees might raise privacy concerns.  Testing methodologies are significant considerations for resolving this issue. Some employers might consider moving toward the more minimally intrusive testing mechanisms that show current impairment (e.g., breathalyzer or oral swab). Other employers might continue to use methods that show past impairment until instructed otherwise by a court or other regulator.

To view the original article please click here.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions