As of October 17, 2018, the possession and use of recreational cannabis will be legal in Canada for adults. Many employers are scrambling to prepare and to understand if and how they can regulate cannabis in the workplace.
The general rule is that employers are free to regulate cannabis in the workplace as they see fit. Employers are entitled to ensure that employees are fit for work at the start of and throughout their time in the workplace. This may include prohibiting the use of cannabis before, during and at work. However, like most general rules, there are exceptions or limitations that employers must keep in mind. There are essentially two main exceptions: an employee who is dependent or addicted to cannabis and an employee who is medically authorized to use cannabis.
As with alcohol and other drugs, it is possible for an employee to become dependent on or addicted to cannabis. A dependency or addiction is considered a disability under human rights legislation.
Accordingly, employees with disabilities must be accommodated to the point of undue hardship.
In most cases, the employer will obtain medical information from the employee’s medical providers or will arrange for an employee to be evaluated by a Substance Abuse Expert. In either case, the employer will want to obtain an assessment of whether or not there is a dependency or addiction, as well as the development of a treatment plan. Where the treatment plan requires an employee to undergo specific treatment for the addiction or dependency, accommodation may include allowing the employee to remain off of work for all or part of the time they are involved in treatment.
An employer may also be prevented from imposing discipline on an employee with a dependency or addiction where they violate a rule or expectation contained in a policy. It is important to ensure that every situation is evaluated based on its own specific circumstances.
The second exception arises in regard to medicinal cannabis. An employee may be authorized to use medicinal cannabis under the Access to Cannabis for Medical Purposes Regulation (“ACMPR”). Where an employee has such an authorization, the employer is required to accommodate that employee as they would any employee who is using a prescribed or over-the-counter medication that may affect the employee’s ability to safely or productively perform his or her job duties. The employer has obligations to ensure a safe work environment and to accommodate the employee to the point of undue hardship.
What Should Employers Do?
With all of this in mind, what should employers do to ensure they are prepared for situations that may arise involving recreational or medicinal cannabis use by employees?
- Review and update their drug and alcohol and/or fit for work policy and ensure that it covers the following:
- Cannabis as a legal recreational substance that may cause impairment (similar to alcohol);
- Cannabis as an authorized medication. It is important to note that medicinal cannabis is not provided through a prescription as it does not have a drug identification number (DIN). This means that if only the language of a prescription is used it will not cover medicinal cannabis. This should include, but is not limited to, the following:
- That the employee is required to report the use of a prescription, authorization or over-the-counter medication that may affect their ability to safely or productively perform their duties before they start taking the medication or before they start work while taking the medication;
- A requirement for the employee to provide medical information regarding the authorization, including the authorization itself and the details around its use, including the timing of use; and
- A requirement that the employee cooperate in allowing the employer to obtain other information from the authorizing physician related to the employee’s duties, responsibilities and workplace.
- In a safety-sensitive workplace, a requirement for the employee to disclose, before a violation of the policy occurs, that he or she has or suspects she has an addiction or dependency and a specific statement that an employee who so discloses will not be subject to discipline;
- Include information about when drug and/or alcohol testing may be conducted, the consequences of testing positive, and the consequences of refusing to be tested
- Ensure their employees are provided with a copy of their policy, or access to a copy of their policies and are notified when changes to policies have been made.
- Provide training to their employees on the policy including:
- Training supervisors and managers to recognize the signs of potential impairment and their obligations under the policy;
- Training supervisors and managers on the process to be followed in order to be able to have employees tested for alcohol and/or drugs; and
- Training all employees on their obligations under the policy and the consequences of violation.
- Follow the policy consistently! It will not be helpful for an employer to draft a great policy and then fail to follow it or to enforce it inconsistently.
It is important for employers to keep in mind that the goal is not to catch employees violating the policy; the goal is to maintain a safe and productive workplace. The fact that there is currently no test for impairment when it comes to cannabis is a complicating factor. At this point, the best employers can do is ensure they are being diligent in dealing with situations involving cannabis use by employees. Having a great policy in place, and providing thorough training to employees, will go a long way in helping employers to be consistent in such situations and to ensure the exceptions to the general rule are considered when appropriate.
Christin Elawny is a labour and employment lawyer helping both non-unionized and unionized employers with complex claims, planning and other employment-related needs.