The following information comes to me from a national Canadian law firm I do considerable work with, Mathews Dinsdale in Vancouver. Much of the content is generalized to Canadian consumption, but many of Ontario’s laws will translate well into BC, or possibly set the bar for our legislation here.
I will have a “Fit to Work” policy for BC Craft Brewers available in January 2019.
- On October 17, 2018, recreational cannabis use became legal in Canada. Employers are now facing the challenge of dealing with the myriad of issues that accompany the recreational use of an impairing substance that was once confined to specific medical uses and otherwise illegal
- An employer can prohibit use of cannabis at the workplace and workers coming to work impaired by it (i.e. not ‘fit for duty’)
- An employer can prohibit use of cannabis at work social functions even though it is legal
- Implementation of fit-for work and substance abuse policies are vital
Some of the highlights of the Cannabis Act, SC 2018, c 16 are as follows:
- Some cannabis-related activities that were prohibited (e.g. possession of less than 30g of dried cannabis in public) are now legal
- Some cannabis-related activities, such as the sale of cannabis or cannabis accessories to a young person, are prohibited
- Some prohibited activities are now punishable by the issuance of a ticket rather than prosecuted under the
- Criminal Code of Canada (the “Criminal Code”)
- Provinces can issue licences and permits for authorized cannabis related activities
The expansion of the legal use of cannabis, however, does not amount to a licence to be impaired on the job. Employers can choose to address cannabis use in the same way that they handle the use of alcohol and prescription or over-the-counter drugs with impairing effects. Employers can prohibit the use and possession of recreational cannabis at work and, in almost all cases, should prohibit impairment on the job.
Policies
Employers should implement policies that explicitly address cannabis and which set clear expectations concerning both medical and recreational drug usage. We recommend that such policies focus on impairment and on ensuring that employees are fit for work/duty. While Health Canada approved testing for impairment related to cannabis is not yet available, testing for presence is both mainstream and reliable. Furthermore, setting out thresholds in policy and testing for presence is an acceptable risk-based approach to managing the hazard of impairment.
The employer should also ensure that drug and alcohol policies distinguish between the use of cannabis for medical purposes and its use for recreational purposes. Employers that prohibit the use of recreational cannabis at the workplace should outline the disciplinary process to be followed if an employee possesses or uses recreational cannabis while at work or comes to work impaired by, or suffering from the after-effects of, its use. Policies covering the use of medical cannabis should outline the forms of medical documentation that will be required to substantiate its use, as well as a commitment to accommodate (to the point of undue hardship).
Policies should also address substance abuse and addiction. We recommend that the policy require employees to proactively report to the employer if they are unfit for duty, a co-worker is suspected of being unfit for duty, and/or they have an addiction to cannabis (or any other impairing drug). The Supreme Court of Canada confirmed in Stewart v. Elk Valley Coal Corp. that an employer is entitled to implement a policy requiring the proactive disclosure of problems with drug or alcohol abuse, dependency and addiction when the objective is to treat such dependency issues. If an employee fails to comply with the policy and only discloses an addiction or dependency subsequent to an incident giving rise to discipline, the employer may be entitled to discipline the employee (up to and including termination for cause) for failure to adhere to the policy. In these instances, the discipline would be for a breach of the policy and not for the employee’s addiction or dependency (which would contravene applicable human rights legislation).
Safety Matters
A key concern for employers relating to the legalization of cannabis is workplace safety. Section 115 of the Workers Compensation Act imposes a duty on employers to “ensure the health and safety of all workers working for that employer, and any other workers present at a workplace at which that employer’s work is being carried out”. In other words, employers are required to ensure the health and safety of workers and to protect against injuries arising in the course of employment, as far as may be reasonably practicable.
Common Questions
Again, my thanks to Mathews Dinsdale for this content.
Question: Should an employer allow smoking on a coffee break? Can employees smoke cannabis instead of cigarettes on their breaks?
Answer: Treat recreational cannabis just like any other impairing substance. Employers can prohibit employees from smoking cannabis for recreational purposes even while they are on a break.
Question: How should employers respond to questions from employees about how long they have to wait after consuming cannabis before it is safe to return to work in a safety sensitive position?
Answer: Since it depends on the person to some extent, and how often, how long and how much the employee consumes, you cannot give them a guideline that guarantees no impairment. Many employers in safety sensitive sectors like aviation and policing are saying up to 28 days or no recreational use at all.
Question: Currently we test to see if a worker is using cannabis. How soon before we are able to test for impairment from cannabis?
Answer: Right now, there is no Health Canada approved device that can test for impairment caused by cannabis. It is difficult to predict when there will be a device or test that is capable of doing more than identifying likely impairment or recent use. However, given the financial incentive – likely in the next year or two.
Question: Is there anything else employers should do?
Answer: The employer’s obligation to ensure a safe workplace for all persons remains unchanged. As noted above, though, employers should revisit existing policies to ensure they accommodate changes to the legislation.