Legalized Pot – Some Workplace Questions

The day has finally arrived. Effective today, October 17, 2018, recreational cannabis use is legal across Canada. 

Canada joins Uruguay as the second country in the world to legalize cannabis. Individuals will be able to use and possess a certain amount of recreational cannabis with each Province/Territory regulating the legal age for use, where cannabis can be purchased and other important details. Prior to today, it was generally illegal to buy, possess and use cannabis unless it was for medical or research purposes.

While recreational cannabis is now legal, many employers have wondered what this will mean for the workplace. Do employers need to significantly change how they regulate drug or alcohol use at the workplace? Below, we have set out some common issues that we have been advising our clients on over the past couple of months in the lead up to recreational cannabis legalization. 

Do we have to tolerate employee cannabis use at work?

“No” (though read the answer to the next question). 

The legalization of cannabis does not require an employer to permit employees to use cannabis at work. Employers can still ban the use of drugs and alcohol at work.  Employers can insist that employees report to work fit for duty and not impaired. In this regard, employers can continue to enforce their existing drug and alcohol or fitness for work policies. More simply stated, employers can insist that break times remain coffee break times, not cannabis break times.

Employers should also remember that anti-smoking regulations do remain in place and would apply.

Do we have to accommodate employees who use cannabis?

Sometimes.

The legal rules have not changed with respect to accommodating employees who have a drug addiction or whose disability requires cannabis prescribed by a physician. Pre-legalization, employers had an obligation to accommodate legitimate and physician-approved medical marijuana use up to the point of undue hardship under the Human Rights Code (“Code”). This has not changed.

It is worth emphasizing that employees are not automatically entitled to their preferred method of accommodation by simply providing a medical note. Similarly, employees have not obtained greater accommodation rights because of the legalization of cannabis. 

A fulsome and individualized accommodation process must occur and employer workplace safety concerns should be satisfied by ensuring that a medical specialist answers specific questions prepared by the employer.  

Can we enact drug and alcohol testing?

In most cases, “no”.

The legal rules relating to drug and alcohol testing have not changed. Employers are still significantly restricted – as compared to US employers – with respect to their ability to implement drug and alcohol testing, especially random drug and alcohol testing which will almost always be found to be unlawful. Generally speaking, drug/alcohol testing may be permitted post-incident, for reasonable cause or as part of an accommodation / return to work plan. However, it is important to remember that drug testing is viewed skeptically by the Courts and by administrative tribunals as there are currently limited ways for a drug test to measure current impairment for marijuana (as opposed to the presence of the substance in the body).

Does the Code prohibit discrimination based on a previous cannabis conviction?

“No”.

The Ontario Human Rights Code does not prohibit discrimination on the basis of an employee (or applicant for employment) being convicted of a criminal offence (not pardoned). Currently, there is a proposed but not yet finalized amnesty program in place to forgive previous cannabis convictions (click here to read more). Accordingly, at present, if an employee or applicant discloses a criminal conviction for marijuana use, an employer will not face consequences – at least under the Code - in the event of a dismissal or failure to hire. 

Can we dismiss an employee for smoking cannabis at work?

A qualified “yes”.

An employer can prohibit the use of cannabis at work and impose appropriate discipline, including dismissal, for improper cannabis usage at work. However, if an employee has a disability, the duty to accommodate may be triggered and require an employer to consider other options short of dismissal. If an employee does not have a disability and the employer is not willfully blind to any substance abuse or disability issues, an employer can generally terminate employment, though it may not constitute “cause” for dismissal without notice.

Should we be changing our policies?

In most cases, “yes”.

While the law governing the workplace has not materially changed with the legalization of cannabis, societal norms have and employers should review their existing policies.  This is not only to ensure that the policies deal with health and safety and accommodation obligations, but also to ensure that the policies are current with today’s modern workplace. For example, how will employers deal with consumption of cannabis prior to the office holiday party? How will employers deal with an expense reimbursement request for a senior vice-president who entertained a client with cannabis? In addition to ensuring policies are consistent with applicable law, these are the types of questions that should be reviewed internally and potentially considered in updating a policy.

Should we be communicating with our employees?

“Yes”.

There is a lot of misinformation with respect to how legal cannabis impacts the workplace. A simple “FAQ” for employees and an updated policy is a good human resources practice to dispel some of the myths and misinformation that employees may have. At the very least, employers should remind employees that they are to attend work fit for duty and not under the influence of substances (whether that be cannabis, prescription drugs or alcohol). This has not changed.

Our Labour Relations & Employment Group will continue to monitor new developments impacting your workplace. Join us at our next breakfast seminar on November 8, 2018 where the issue of cannabis in the workplace will be explored in detail. Click here for more information.