Marijuana currently remains a controlled and prohibited substance under the Controlled Drugs and Substances Act, except where authorized by certain exemptions and regulations. However, on October 17, 2018, the Cannabis Act, previously known as Bill C-45, will come into force, making the recreational use and possession of marijuana legal (within certain limitations).
There has been much discussion about the impact that the legalization of marijuana will have on issues like impaired driving and criminal prosecutions. But the question many employers are asking is how will it affect the workplace?
Here are 6 important points that employers should keep in mind as we look ahead to the impending legalization of marijuana in Canada:
1) The legalization of marijuana does not mean that employees will now be permitted to be impaired at work.
As is already the case with alcohol and illegal drugs, employers will have the continued ability to maintain policies restricting marijuana use in the workplace. An employer’s best line of defence against preventing marijuana and other drug impairment in the workplace is to have a substance use and impairment policy.
Drug and alcohol policies restrict employees’ ability to be impaired at work. For example, they can specifically prohibit marijuana use at work or during working hours. However, substance impairment and use policies must take into consideration the employers’ duty to accommodate disabled employees, as medical marijuana is used to treat many medical conditions that would be considered physical disabilities. Also, drug (and alcohol) dependence is a recognized physical and mental disability in human rights law, which further complicates the issue.
2) The most common difficulties that arise with drug and alcohol policies are privacy and discrimination concerns.
Drug and alcohol use policies can be discriminatory if they do not allow for the accommodation of employees with a prescription for medical marijuana, or if they adversely impact people with a physical or psychological dependency on marijuana (subject to safety requirements). Although having a prescription for medical marijuana does not necessarily entitle an employee to consume marijuana or to be impaired at work, it may require the employer to make appropriate workplace accommodation for that employee.
3) Under the B.C. Human Rights Code, employers are prohibited from discriminating against individuals by refusing to employ or to continue to employ people because of mental or physical disability (in addition to other grounds such as race, ancestry, place of origin, political belief, religion, marital status, family status, etc.).
Employers must also make reasonable accommodations for employees who fall into these recognized categories, including employees who use medical marijuana. The duty to accommodate requires an employer to make reasonable accommodation for an employee’s “difference”, so long as the accommodation does not cause undue hardship to the employer, and so long as the discriminatory requirement is not a bona fide occupational requirement, i.e., provided that the employee is not lacking a quality required to do the job.
4) Under the common law, and by virtue of the Workers Compensation Act and the Occupational Health and Safety Regulation, employers are obligated to ensure a safe workplace for employees.
Part of ensuring a safe work environment is being aware of potential hazards in the workplace and putting in safeguards against those hazards to protect employees. In safety sensitive environments, such as those where vehicles or heavy machinery are operated, impaired employees can indeed pose a workplace hazard. Employers must take steps to protect against impairment in these types of workplaces and put in place policies that ensure the safety of the workplace and workers, including ways to prevent impairment at work.
5) Determining impairment is one of the most difficult aspects of designing and implementing workplace policies on marijuana.
Recent consumption of marijuana does not necessarily mean that an employee is impaired. Current marijuana tests only show whether THC is present in an individual’s blood at all. However, different people metabolize THC, the ingredient in marijuana that causes impairment, at different rates. Having THC present in one’s blood does not necessarily show current impairment. Recent work with saliva tests being rolled out in advance of tightened impaired driving laws look more promising in terms of being able to test for current impairment, though.
6) Drug and alcohol testing is currently one of the most contentious, constantly evolving areas of employment law in Canada today.
The most contentious and controversial type of testing is random drug testing. Zero tolerance policies have also proven problematic. Although it makes common sense that random drug testing could promote safety and decease drug use and/or impairment in the workplace, courts and human rights tribunals have held that a dangerous or safety sensitive workplace alone does not justify random testing.
Cases in which random testing or zero tolerance policies are challenged are often decided on the specific wording of the policy at issue, and on the specific evidence in each case. For instance, courts or tribunals will often look at whether the evidence supports a serious drug or alcohol problem in the workplace, and if there is a causal connection between that problem and accidents or near- misses in the workplace. Pre-employment or pre-site attendance testing has also proven problematic.
In summary, as an employer, if you do not already have a policy that addresses workplace substance and alcohol impairment and use, get one! If you already have a workplace policy on drugs and alcohol, ensure that it is updated to take into consideration recreational marijuana use.
It is best to consult an employment lawyer in developing or making changes to your drug and alcohol impairment, use, and testing policy to ensure that it is not discriminatory and that it complies with human rights and privacy law. An employment lawyer can also assist in providing more information on the employer’s duty to accommodate, when it arises, and its scope, as well as corresponding duties on employees, which also apply.
(Brynna practices employment law, as well as various other types of litigation work, such as insurance disputes, personal injury and accident claims, and estate litigation, in Vernon, British Columbia at Davidson Lawyers LLP).