Now That Cannabis Is Legal Across Canada
Oct 26, 2018

The Legal, social and political landscape of Canada has now changed dramatically, as Cannabis is now legal for purchase. The latest data suggest that one in every ten Canadians were cannabis users in the past year, meaning few workplaces across the country will NOT be affected.

With employers still grappling with the complexity or uncertainty of managing existing addictions in the workplace as it pertains to alcohol and other drugs, the legalization of pot will add another layer to not only manage, but to worry about.

Responsibility Of Employers

Employers must update
their respective policies and procedures to include the prohibition of cannabis
usage in the workplace. For example, employment contracts and company policies
typically prohibit substance abuse at work. That must now include cannabis.

to occupational health and safety legislation across Canada, employers are
statutorily required to ensure the safety of their employees in the workplace.
Because of this, employers must be prepared to devote time and money to train
their employees on cannabis consumption in the workplace, and inform them of
changes to the terms of their employment in this realm. Additionally, employers
must be prepared to extend training to their managerial and supervisory staff
to teach them how to address issues of cannabis impairment at work, how to spot
such impairment and the appropriate steps that need to be taken in response to
concerns being raised.

Lastly, mandatory
content in employment policies, requires provisions for disability-based
accommodation when an employee brings to the attention of an employer that they
require support due to an addiction or medical necessity. Drug and alcohol
addictions are typically considered disabilities under human-rights legislation
and as such are protected from discriminatory actions by employers and
co-workers. Therefore, an addiction to cannabis will likely be considered a
disability. Employers need to amend their employment policies to include
cannabis, and must be prepared to accommodate an employee or put themselves at risk
of being sued.

Impairment And Testing

The issue of
testing, and how impairment from cannabis is determined, remains problematic.
It is not the same as testing the impairment from other drugs or alcohol. While
there are tests to assess the level of THC (the chemical component causing the
high) in an individual’s body, an assessment of the exact level of impairment
is not definitive.

According to
human-rights law, employee drug and alcohol testing may only be permitted when
the employees are operating in safety-sensitive employment settings and when a
series of additional requirements placed on employers who conduct this testing
have been met.

Policies And Procedures

It is important to
note that a standard element of employment policies, spanning diversified
employment settings, is that employees cannot be impaired while at work and
performing the duties of their employment.

Across Canada, law
enforcement is also grappling with the issue of testing but the techniques
being made available to police officers are unlikely to be permitted in the
workplace. Therefore, employers will need to develop their own techniques to
assess impairment of their employees.

It is also
advisable that the focus be shifted from testing of impairment levels to an
assessment of employee conduct. Employers need to familiarize themselves, and
their staff, with signs of behaviour in the workplace caused by cannabis use.
However, this raises a host of issues regarding who is authorized and qualified
to be making these assessments on a daily basis.

Employers will also
need to set policies that recognize medicinal cannabis use, including CBD oil
(used to treat chronic pain), to ensure that they do not discriminate against
employees who benefit from these treatments.

Over the next few
months, it is important that employers include cannabis use in their workplace
policies as well as procedures for assessing employees. One thing that
employers can be sure of is that failing to appreciate the changes the Cannabis
Act brings to the workplace will lead to greater human resource management
issues and potential lawsuits.

Please note the above is for information purposes only.

If you need more information about Cannabis in the work place, please contact the MTA.

204 632-6600