Canada: Legalization And The Workplace: Your Questions Answered!

On October 17, the federal government legalized recreational marijuana use. At the same time, Ontario's provincial government enacted the Cannabis Act and amended related legislation.

Employers are rightly concerned about the possible impacts on the workplace. We received several insightful, widely applicable questions during the Q&A session at the end of our October 17th Webinar on the subject.

We have curated a collection of those questions, with our answers below.

You can view a replay of the webinar in our Media Centre.

Q: What are "safety sensitive positions" for the purposes of drug and alcohol abuse policies?

A: "Safety sensitive" is not a term that is defined in any law but is assessed on a case-by-case basis. Some safety sensitive positions are apparent, such as working with heavy equipment that could cause serious injury or death. In addition, some workplaces, such as mines, are so inherently hazardous that almost every position could reasonably be said to be safety sensitive.

However, the categories of positions that could be safety sensitive are broad. If the actions of an employee could reasonably impact their own safety or that of others, that position may be "safety sensitive." This may include medical and crisis support workers who may administer medication and provide patient care. Where an employee is responsible for supervising vulnerable clientele (such as seniors or children) and must be ready to respond to potential crises quickly, their position may also be "safety sensitive".

By contrast, most office, clerical and administrative staff do not work in safety sensitive positions.

Q: Can an employer ask an employee to smoke medical cannabis where it will not bother other employees?

A: In most cases, yes.

The right to smoke medical cannabis does not always override the interests of other employees. For example, scent sensitivity has been identified as a potential disability under the Human Rights Code requiring accommodation.

What results is a balancing act between the need for the employee to take medical cannabis on the one hand, and the employees who are impacted by secondhand smoke on the other.

In many cases, a reasonable accommodation of both parties will be to permit the employee to smoke medical cannabis as required, but in an area where it is unlikely to impact other workers. If the nature of the workplace makes that difficult, further accommodations may be necessary in order to strike the right balance between those competing rights.

Q: In a non-union environment, if a manager suspects someone is under the influence of cannabis, can we require a drug test?

A: This is a very sensitive issue and must be handled carefully.

Before an employer can require that an employee submit to a test, its policies must permit testing in the circumstances. If the manager who identifies the possible impairment does not have training on evaluating drug impairment, it may be advisable for them to seek a second opinion from another employee with formal training to determine whether reasonable grounds exist for testing.

Even with these precautions, mandating that an employee take a drug test, even in a non-union environment, is inherently risky. Human rights concerns may arise, particularly if the test could reveal an addiction. There are also privacy concerns, to which courts have been increasingly attentive.

You may want to get legal advice prior to imposing any test on an employee.

Q: What if employees use what they claim is non-THC medical cannabis?

A: There are likely to be more and more varied, applied therapeutic uses of non-THC cannabis products. These medications purportedly have less of an impairing effect because they do not contain the active ingredient in cannabis (THC) that is the usual cause of impairment.

It should be noted, however, that many of these medications have only recently been developed, and there may not be a substantial body of testing as to potential impairing effects.

When an employee is using any kind of medication, particularly in a safety sensitive position, the employer has the right to be provided medical evidence that its use will not impact their ability to work efficiently and safely. If a worker habitually uses such medication, it may be wise to require medical confirmation that the use will not impact their ability to perform their job safely.

Q: Do we need employees to sign off on a new substance abuse policy?

A: The workplace is not a democracy. Employers have the right to institute new policies, and employees are required to abide by them. While there may be more difficulties in implementing a new policy in a unionized setting, this core concept remains the same.

However, the introduction of a (reasonable and lawful) policy alone does not make it enforceable. In order for a policy to be enforceable, employees must be aware of the policy, the restrictions therein, and the potential consequences should they not abide by it. In addition, the employer must commit to consistently and diligently monitoring the workplace to ensure compliance with the policy. If these steps are not followed, any discipline or other action taken in enforcing the policy might be vulnerable to challenge.

Q: What training should managers receive to help them deal with legalization?

A: Managers should, of course, be familiar with an employer's policies as they relate to substance use. They will be responsible for issue-spotting and monitoring their employees for compliance.

It is often advisable for front-line managers to have basic training on identifying potential impairment and intoxication issues. This is particularly true for managers responsible for supervising workers in safety sensitive positions. If they are not personally trained on such recognition, it is important they know who in the organization to contact should they suspect an impairment or intoxication issue, as well as the organization's process (if any) for requiring an employee to submit to a test.

It may also be helpful for managers to receive orientation training on some of the related human rights issues, such as medical cannabis use and addiction. Such training will help reduce the risk that a manager would unknowingly breach the Human Rights Code.

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.

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Jeremy Schwartz
Frank Portman
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