Cannabis legislation, impairment and employer’s responsibility

Is your company ready for recreational cannabis to be legal? Using cannabis in the workplace isn’t new – but now is a great time to make sure your policies cover the implications of legal recreational cannabis or marijuana.

Medical cannabis at work

Medical cannabis has been legal in Canada since 2001. This means that when employees have a legitimate reason to use cannabis at work, employers must accommodate their need. Employers must also ask the employee the method of ingestion, the dosage and the frequency.

However, using medical cannabis does not entitle the employee to be impaired at work or compromise the safety of themselves or others. They are also not necessarily allowed to smoke in the workplace, have unexcused absences or arrive at work late.

The challenge of recreational use

Using recreational cannabis before or during work hours could be treated by employers similarly to using alcohol in the workplace. Unlike alcohol, however, there is currently no established test for determining cannabis impairment. This presents a challenge for employers.

Unless cannabis is used for medical purposes, employers can require employees not be under the influence of marijuana at work – particularly if impairment could compromise the safety of the employee or anyone else.

What should a proactive employer do?

The use of cannabis by employees needs to be carefully managed. First, employers need to make sure they have clear policies in place.

These policies may include the requirement to disclose marijuana use for medicinal purposes to a supervisor or other authority at the workplace.

Clear written policies will give employers the opportunity to appropriately manage the use and consumption of cannabis in the workplace. Policies also make it easy for employees to manage their marijuana use and understand the consequences if they come to work impaired and unable to do their job.

Once recreational cannabis is legal, employers cannot put a full prohibition on the possession of marijuana at work or the use of it outside of work hours. However, employers do have a responsibility to ensure the safety of their employees including possibly monitoring for cannabis impairment. Smoke-free laws apply to smoking cannabis in the same way they do to smoking regular cigarettes. Employers should update any smoking policies to reflect this. Also, employers may have to deal with scent-related complaints about employees who use cannabis. Employers should examine their current scent policies to ensure these complaints are covered for cannabis that is smoked or applied topically.

 

Whether your workplace is ready or not, recreational cannabis will become legal in Canada in October 2018. Cohen Buchan Edwards can help you draft policies around marijuana use at work or review and help update your existing policies to ensure you are protected if marijuana use becomes an issue in your workplace.

Before your workplace has a situation with an employee and use of cannabis, come and talk to our Employment Law experts.