Canada: The Cannabis Countdown Is On …

On October 17, 2018, the Cannabis Act will legalize recreational cannabis in Canada. Under the new regime, each province will be responsible for regulating the sale and distribution of recreational cannabis within its jurisdiction. Employers should be aware of how legalization and provincial regulation will affect their workplaces and prepare for potential issues that may result.

The provisions of the Cannabis Act will permit Canadians who are 18 years of age or older to:

  1. possess up to thirty (30) grams of cannabis;
  2. share up to thirty (30) grams of cannabis with other adults;
  3. purchase dried or fresh cannabis from a provincially licensed retailer;
  4. grow up to four (4) cannabis plants per household for personal use; and
  5. make cannabis-infused food and drinks.

It is expected that the legal sale of cannabis-infused food and drinks will not come into effect nationally until 2019, as regulations are still being developed.

Manitoba Legislation

Provincially, Manitoba has passed two pieces of legislation – The Cannabis Harm Prevention Act and The Safe and Responsible Retailing of Cannabis Act – which will regulate the sale and distribution of cannabis within the province. The sale of cannabis in Manitoba will be restricted to individuals who are 19 years of age or older.

The Cannabis Harm Prevention Act amends several Acts to address health and safety concerns that are expected to result from the legalization of cannabis consumption. It is also intended to close any legislative gaps that may arise when cannabis ceases to be an illegal drug. The Acts that will be amended include: The Highway Traffic Act; The Non-Smokers Health Protection Act; and The Public Schools Act.

The Safe and Responsible Retailing of Cannabis Act will amend The Liquor and Gaming Control Act to set out the requirements for licensing cannabis stores and cannabis distributors in Manitoba. It will also amend The Manitoba Liquor and Lotteries Corporation Act to regulate how the Manitoba Liquor and Lotteries Corporation will acquire cannabis for resale at licensed stores. Pursuant to these amendments, private companies will also be able to apply for retail cannabis licenses. Initially, the Province has approved four private companies and consortiums to sell cannabis in Manitoba.

Medical Cannabis

An employee's legal ability to use cannabis for medical purposes was confirmed by the Supreme Court of Canada in 2015. As of August 24, 2016, the Access to Cannabis for Medical Purposes Regulations (the "Regulations") replaced the Marihuana for Medical Purposes Regulations and established the current legal framework under which patients can obtain authorization to possess cannabis for medical purposes. The Regulations outline, inter alia:

  1. who may possess cannabis;
  2. limits on the amount of cannabis that may be possessed;
  3. the medical documentation required to qualify for cannabis use under the Regulations; and
  4. the information that must be contained in a prescription for medical cannabis.

The legalization of recreational cannabis will have few effects on the administration of medical cannabis. It is important to note that the use of medical cannabis does not give employees a right to be impaired at work, particularly where their impairment may endanger their own safety or the safety of their co-workers. Employees who seek accommodation from their employer for the use of medical cannabis while working will still be required to obtain a prescription. This is no different from what is currently required of employees who use medical cannabis.

Further, employers and employees still have an obligation under occupational health and safety legislation to maintain a safe working environment for all individuals in their workplace. In particular, employees in "safety sensitive" positions are required to inform their employers if they intend to use medical cannabis while on the job. In such circumstances, accommodation may be required.

Accommodation

Due to the application of The Human Rights Code (the "Code"), employers must be cognizant that some cannabis users may be entitled to legal protections, while other cannabis users may not. Specifically, employees prescribed cannabis for medical purposes and employees suffering from addiction may be entitled to accommodation.

Employers are required to accommodate employees "to the point of undue hardship"; however, it is important to remember that accommodation of employees does not mean that employers are required to permit impairment in the workplace. Rather, employers must balance the right of the employee to equal treatment with the rights of the employer to employ the best employee for the job and maintain a productive workplace. Accommodation can take many forms, and should be done on a fact-specific basis.

Addiction

As noted, employers are prohibited from discriminating against employees suffering from addiction because addiction is classified as a disability under the Code. This will not change once cannabis is legalized. Employers will be expected to continue to treat cannabis addiction in the same fashion as any other drug or alcohol addiction. Certain accommodations may be required to ensure compliance with the Code, such as providing the addicted employee time off to attend rehabilitation or treatment programs.

Employers may see an increase in the number of employees who claim addiction to cannabis once cannabis is legalized. This should not alter the employer's response. Employers should still inquire about the addiction and determine the best course of action for both the addicted employee and the employer.

Testing

Currently, testing for impairment due to cannabis use is difficult as there is no medical test that accurately or reliably indicates the level of a person's impairment. Unlike alcohol, cannabis can be detected in the bloodstream days after ingestion, and levels of THC (the active ingredient in cannabis) do not necessarily correspond with levels of impairment. Courts in Canada have stated that employers are required to balance employee privacy interests with the employer's interest in drug testing to ensure a safe work environment.

Although Courts have generally held that random drug testing of an employee is not permitted, there are some instances where employers may be justified in testing employees for cannabis impairment. These situations are very fact-specific, and employers should exercise caution when determining whether to drug test an employee.

Policy

Employers are encouraged to update their current Drug and Alcohol Policies once the Cannabis Act and the various provincial Acts which regulate recreational cannabis have come into force. Any changes made to Drug and Alcohol Policies should reflect the new legal status of recreational cannabis. Perhaps more importantly, employers that do not have Drug and Alcohol Policies currently in place are strongly advised to have such Policies drafted and implemented as soon as possible.

The implementation of Drug and Alcohol Policies, as well as the revision of current Drug and Alcohol Policies, must be properly communicated to all employees to ensure compliance. It is further recommended that employers provide continued education for both management and employees on the responsibilities and expectations of cannabis use in the workplace. This will help to ensure all staff are fully educated on the permitted and prohibited uses of cannabis in the workplace and help prevent issues from arising before they reach disciplinary levels.

Help

There has been a considerable amount of hype (and some hysteria) surrounding this issue in the last year; however, although employers can expect to encounter some challenges as a result of greater cannabis consumption following legalization, implementation and reasonable application of appropriate Policies should enable employers to deal with those challenges without undue difficulty. As always, the Labour & Employment Practice Group at TDS would be pleased to provide any assistance you might require, including with preparation of an updated Drug & Alcohol Policy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice

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
Torkin Manes LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Torkin Manes LLP
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