Cannabis Legislation and the Workplace

MANAGEMENT

In October of 2018, the federal government legalized
the possession and use of marijuana for recreational
and medicinal purposes in Canada. As a result, business
owners have been dealing with a changing landscape.
This means that they must understand not only the
rights of customers but also the rights of their
employees.

Smoking in the past

When I was young, smoking was allowed on airplanes. It was
a strange situation. The non-smoking section was usually
in the middle of the plane, so passengers were affected as
tobacco smoke drifted into the front and rear non-smoking sections; however, laws and norms change. In 1989 it became illegal to smoke on domestic flights and, some time later, on international flights as well. Of course, the possession and use of marijuana remained illegal, but as we now know, other changes were coming.

General advice to business

I am not an employment lawyer, but I deal with a lot of businesses and receive a lot of inquiries about the impact of changes in the legal landscape. My advice with respect to employment-related matters remains consistent – it is essential to implement employment policies that address the changes effected by new legislation, including the legalization of the use of marijuana.

Business policy

Many businesses already have policy manuals; however, many of those manuals have yet to be updated to
deal with the change in marijuana legislation. Our firm, for example, implemented a no-smoking policy
many years ago. This makes sense, because the building in which we practise is a non-smoking building;
however, implementing a simple no smoking policy is not sufficient to restrict the use of marijuana in the workplace. It was necessary for us to update our policies when the legislation came into effect last year.

Going forward

A company should discuss any changes to their current policies with their employment lawyer. If your
business is non-unionized, your lawyer must consider whether the change is what is referred to as a
“fundamental change.” If your workplace is unionized, the policy must be consistent with the collective
agreement. A marijuana policy should address both recreational and medicinal uses. The relevant federal
legislation includes both the Access to Cannabis for Medical Purposes Regulations as well as the Cannabis Act, which legalizes the use of marijuana for recreational purposes. In addition, various provincial laws apply.

Other legal implications

Employees who are prescribed marijuana for medicinal purposes may have grounds for complaint under
human rights legislation if their employer prohibits them from using the drug. For example, one would
consider whether marijuana use is related to a disability and if the employer was obliged to accommodate
its use. That is a very different situation than using the drug for recreational purposes.

Workplace safety

Whether the use is for recreational or medicinal purposes, an employer must be aware that marijuana may affect an individual’s ability to work.

The following are some questions to consider when implementing a marijuana policy in the workplace:

• Is there reason to be concerned about the drug’s use in safety-sensitive positions?
• How is a need to use marijuana medicinally accommodated? For example, your policy may require
  confirmation of certain information from a physician before use is permitted.
• How is suspected consumption of the drug addressed?
• What is the procedure for registering concerns or suspicions about marijuana use?
• What is the investigation process in place once a complaint regarding marijuana use is received?

Workplace drug testing

The issue of workplace drug testing is challenging. Any policy should clearly set out the rules that relate to drug testing. The employer’s obligation to ensure workplace safety must be balanced against the privacy rights of the employee. Establishing impairment itself can be difficult in that tetrahydrocannabinol (THC), an active component in marijuana, can remain in the blood for up to 30 days after the drug is used. This makes it difficult to establish the time that the drug was consumed. As is always the case with employment-related matters, it is essential to be consistent and practical. Any actions taken must be reasonable in the circumstances. Policies should be periodically reviewed by an employment lawyer who practises in your jurisdiction to ensure that they comply with both federal and provincial laws. No one ever said that change would be easy.