How long has cannabis been legal in Canada?

Recreational cannabis has been legal in Canada since October 17, 2018, and edible cannabis is legal as of October 17, 2019. Each province gets to decide how cannabis will be regulated within their jurisdiction, just as they currently regulate alcohol.

Can employees use cannabis while at work?

Despite legalization, employees cannot expect to attend work while intoxicated, and employers can still insist on sobriety in the workplace. It is therefore important that employers have clear policies surrounding cannabis in the workplace. 

How to manage the risk of cannabis use in the workplace

Just because cannabis (including edible products) are legal, that does not mean that a worker can be impaired on the job site. Employers can set rules for use of cannabis in the workplace in much the same way as they can for alcohol and prescription drugs. 

Understand your legal obligation

Employers have a legal obligation to protect workers from workplace hazards and a duty to maintain a safe workspace. These duties are supported by existing court decisions, occupational health and safety legislation, and the criminal code. 

Part of these obligations is taking steps to minimize or eliminate workplace hazards that result from drug and alcohol use. The biggest concern is for safety-sensitive workplaces. Workers who are impaired on the job—whether by alcohol or drugs, or for any other reason—are a danger to coworkers and themselves. 

Create a workplace substance use policy

Employers can and should create substance use policies and procedures for the workplace and, where employees suffer from substance dependencies, employers should encourage employees to ask for disability-related accommodation before harmful incidents happen. 

Assessing and minimizing impairment-related hazards, and putting controls in place, requires updating workplace policies and procedures to deal with cannabis impairment.

1. Define impairment

Though “impairment” is not currently specifically addressed in Alberta’s OHS legislation, employers, supervisors, workers and other workplace parties all have the obligation to ensure that impairment does not adversely affect health and safety on a work site. 

Employers should address workplace impairment by developing a clear policy of what is considered “impairment” in the workplace and how the employer will investigate.

This also includes training and educating supervisors on impairment recognition and making workers aware of the risks of impairment in the workplace. You should also clearly define that all employees are obligated to address and report impairment. 

Employers should be cognizant that employees may test positive for cannabis use without being impaired at the time of the testing.  Because of that, zero tolerance policies are typically not enforceable in Canada.  Even in a safety-sensitive position, an employer may only be able to enforce a zero tolerance policy for use or possession of cannabis in the workplace, and testing for cannabis is only permissible in very limited circumstances.

2. Determine if a zero tolerance or reasonable use policy is best

Employers should think about their workforce and labour needs when deciding whether to have a “zero tolerance” versus a “reasonable use” policy, or whether to conduct drug testing. In certain populations, drug testing for cannabis might eliminate a significant number of employees or applicants and, in order to attract top talent, employers may want to reconsider whether a zero tolerance policy is the right decision.

How to manage medical accommodations for cannabis use

It is important for employers to distinguish between recreational versus medical use of cannabis, and to address requests for accommodation. Under human rights legislation, substance dependencies are considered a disability and may require accommodation. Even though employers have an obligation to reduce risk and protect workers, the privacy and human rights of their employees must be protected in the process. 

There are limits to the lengths that employers must go to in order to accommodate an employee. Use and possession of cannabis for medical purposes may need to be accommodated, unless doing so would create an undue hardship for the employer. Employers must balance an employee’s health requirements with maintaining a safe and productive workplace. 

Currently, there is a trend towards drafting policies to target impairment at work due to any substance or medical condition. These policies require disclosure of any such condition which may affect an employee’s ability to work effectively or safely.  Once an employee discloses such a condition, then efforts to try to accommodate the employee can begin.

How we can help

Regardless if you are an employee or an employer, the legalization of cannabis and edible products may affect your workplace. Employers should review and consider updating their employment practices and/or policies in line with the recent changes.

Whether you need a consultation, a review/revision or a complete overhaul of your employment policies, our firm has the expertise to assist you.  Please feel free to contact any member of our Employment Services Practice Group to learn more.

Emery Jamieson LLP