Previously printed in the LexisNexis Labour Notes Newsletter.
As of January 31, 2023, an exemption to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "Act") will allow adults in B.C. to possess small amounts of certain controlled substances without the risk of criminal charges. While this is unlikely to significantly disrupt the status quo respecting drugs and alcohol in the workplace, there are several issues that employers should consider in light of this exemption.
Overview of the Exemption
Section 56 (1) of the Act allows the Minister of Health to provide exemptions from provisions of the Act if it is deemed necessary for a medical/scientific purpose or is otherwise in the public interest. On Tuesday, May 31, 2022, the federal government announced that it had granted such an exemption for British Columbia. This exemption will come into effect on January 31, 2023 and last until January 31, 2026, unless it is replaced or revoked earlier.
The exemption applies to adults in B.C. and releases them in certain circumstances from section 4(1) of the Act, which forbids the possession of various controlled circumstances. Under the exemption, adults in the province will be permitted to carry a cumulative maximum of 2.5 grams of specific opioids, cocaine, methamphetamines and MDMA (ecstasy).
The exemption will not apply in certain locations, including on K-12 school premises, in childcare facilities, in airports and in motor vehicles operated by minors. The exemption will also apply only if the possession of the substance is for personal use. Any intent to traffic or export the substance or use it in the production of a controlled substance in a manner not allowed by the Act will not be covered by the exemption. Additionally, if the illegal substance is possessed on forms of transportation operated by an adult, the substance must not be readily accessible to the operator.
Considerations for Employers
The exemption is unlikely to challenge the status quo in workplaces when it comes to drug and alcohol policies or testing. Employers can continue to expect employees to attend at work when not under the influence of drugs or alcohol – and fit to work – even if the possession of a wider variety of substances is no longer criminalized.
However, there are some drug-related workplace issues for employers to consider in light of the exemption.
First, the B.C. government has reported that the exemption is "a critical step toward reducing the shame and fear associated with substance use." 1 An increased openness to discussion around drugs might more frequently trigger an employer's duty to accommodate where a substance use disorder is at issue.
The decriminalization of the possession of small amounts of controlled substances might require employers to be more aware of possible employee disabilities related to drug addiction or dependency. The exemption might lead to more full and frank conversation around drugs in the workplace and may therefore make it more likely that an employer's duty to inquire will be engaged.
Second, January 2023 or even the next few months might be a good time to update drug and alcohol policies in the workplace to ensure that they include reference to the exemption where appropriate, and to make certain that management is considering the potential impact of the exemption on the organization. This will be especially true in safety-sensitive workplaces and workplaces where the exemption will not apply, e.g. elementary or secondary schools.
Third, the exemption may affect the reasonableness analysis in which courts and administrative tribunals engage when determining if drug testing was appropriate. Decisions regarding drug and alcohol testing aim to balance an employee's privacy interests with the business and safety concerns of the employer. Generally, such testing is permitted if: (i) an employee is entering a safety-sensitive position for the first time; (ii) there are reasonable grounds to believe the employee is impaired; (iii) the employee was involved in an incident and the condition of the employee is a reasonable line of inquiry; or (iv) the employee is returning to work after testing positive for substance use or self-disclosure of a substance addiction or dependency. With the introduction of the exemption, it is possible that suspicion of impairment will be more reasonable and it will therefore be easier to establish the need for drug testing in the workplace.
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.