Canada: Employer Policies On Off-Duty Cannabis Use

Last Updated: October 26 2018
Article by Ritu Mahil and Jim Boyle

The big day has arrived. On October 17, 2018, the federal Cannabis Act came into force, legalizing cannabis and related products for recreational use.

Since the federal government announced legalization, the practical impact of legal cannabis on employers has been unclear, causing a good deal of angst and uncertainty. We have previously discussed how employers should revise their drug and alcohol policies to prepare for legalization in a  previous post.

Some of the uncertainty for employers is caused by the fact that the long-term effects of consuming cannabis are not well understood and there is currently no objective method of confirming current impairment. A lingering question remains as to whether occasional or chronic use of cannabis might cause long-term deleterious effects on a worker's cognitive and physical abilities even days, weeks, or months after consumption. The concern is particularly acute for safety-sensitive workplaces that cannot risk permitting workers to perform their duties with any degree of impairment.

It is clear that employers can enforce policies prohibiting the use of any intoxicating substance, including cannabis (or alcohol or any other legal drug), at the worksite as well as attending at work intoxicated by any substance. The law is less clear regarding the circumstances which would permit an employer to enforce a policy prohibiting off-duty consumption of cannabis.

A number of organizations have recently taken decisive positions in respect of whether to permit their workers to consume cannabis while off-duty. A patchwork of approaches has developed throughout Canada.

For example, the Calgary Police Service has imposed a complete ban on its officers consuming cannabis, even while off-duty or on vacation. The RCMP and the Canadian Armed Forces permit off-duty consumption of cannabis, provided that there is no consumption within eight hours of reporting for duty. The Vancouver Police Department permits police officers to use cannabis off-duty, but does not impose any timeframe proximate to reporting for duty during which cannabis use is prohibited. Instead, the VPD plans on educating its officers around cannabis use and potency, and will rely on the officers self-evaluating their fitness for duty.

In the private sector, airlines Air Canada, Westjet, and Jazz have outright banned off-duty use of cannabis for employees holding safety-sensitive positions, including flight operations and aircraft maintenance.

In unionized workplaces, simply imposing a blanket ban on off-duty use of cannabis, even for safety-sensitive positions, may be challenged by unions. Whenever an employer adopts a policy that could result in discipline of employees who breach that policy, the policy must pass the "KVP test", which involves assessment of the policy in light of a number of factors, including that the policy must not be unreasonable.

In assessing a policy's reasonableness, labour arbitrators will consider factors including whether the policy is rationally connected to the employer's business interests, whether the policy is overly intrusive of the rights of employees, and whether there is reasonable proportionality between the effect of the policy and its business related objectives.

This means that companies wishing to restrict off-duty cannabis use by unionized workers will have to develop defensible reasons for doing so. Due to the degree of intrusion into the private life of employees, there will be a higher standard imposed where an employer adopts a policy outright banning off-duty consumption of cannabis at any time.

It may be arguable that, given the current lack of reliable information regarding the long-term effects of cannabis use, companies cannot afford to take any risk that a highly safety-sensitive employee might have their ability to work safely jeopardized.

A Newfoundland & Labrador arbitrator recently applied similar logic in concluding that it would impose undue hardship on an employer to accommodate an employee in a safety-sensitive position where the employee used medical marijuana to treat a disability. The employee's physician directed him to inhale cannabis vapor each evening, and the employee reported no signs or feelings of impairment the following morning when he reported to work. Nevertheless, the arbitrator concluded:

The Employer did not place the Grievor in employment at the Project because of the Grievor's authorized use of medical cannabis as directed by his physician. This use created a risk of the Grievor's impairment on the jobsite. The Employer was unable to readily measure impairment from cannabis, based on currently available technology and resources. Consequently, the inability to measure and manage that risk of harm constitutes undue hardship for the Employer.

While the context of that case differs as there is no duty to accommodate an employee's recreational use of marijuana, the arbitrator's acceptance that the inability to measure and manage a risk of harm associated with marijuana use in safety-sensitive positions may suggest that, in certain circumstances, an outright ban on off-duty use for certain safety-sensitive employees could be reasonable.

This has yet to be tested in respect of an outright ban on recreational cannabis use, but it is likely there will be a flurry of grievances filed by unions against companies adopting such policies in the coming months. The nature of the employees' duties and responsibilities will likely be of pivotal importance – for example, less risk may be tolerable for pilots than for employees whose impairment is not likely to directly jeopardize the safety of hundreds of people. However, until a body of case law develops in respect of such policies, it is difficult to predict how arbitrators will react to no-tolerance policies.

We look forward to tracking the rapid development of the law in this area and will continue to update as new information and decisions become available.

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

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

Ritu Mahil
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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