This article is from the quarterly Canadian Overview, a newsletter produced by the Canadian member firms of Moore Stephens North America. These articles are meant to pursue our mission of being the best partner in your success by keeping you aware of the latest business news.
On June 19, 2018, the Senate passed Bill C-45, the Cannabis Act, which legalizes the consumption of recreational cannabis across Canada. The Act comes into force on October 17, 2018.
Consumption of cannabis will continue to be forbidden in public places, workplaces and vehicles, with some possible exemptions for people who consume marijuana medicinally.
So what does this mean for employers?
Impairment in the workplace is still unacceptable
While employers have a legal duty to accommodate medical cannabis, there is no such obligation with respect to recreational cannabis. It should be treated in the same manner as alcohol or other drug-related use or impairment in the workplace.
Accommodating medical cannabis is still recommended
Employers have a responsibility to take every reasonable precaution in the interests of employee safety. This includes accommodating an employee’s disability to the point of undue hardship. However, employers can (and should) ask for supporting medical documentation addressing medical cannabis use during work hours, including but not limited to a copy of the licensing documentation.
However, a cannabis prescription does not give workers the right to compromise their safety or the safety of others. If the essential duties of a position are safety-sensitive, no amount of impairment is tolerable. If the essential duties of an employee’s position are not safety-sensitive, some degree of impairment may be acceptable. Employers will need to prove tangible safety risks to refuse accommodation.
Also, employers are not obligated to let employees smoke cannabis in their workplace’s designated smoking area. If an employee needs to smoke prescribed marijuana during the workday, a place and time should be established to not expose other employees to cannabis smoke.
Finally, dependence on recreational marijuana may be a disability. Employers should encourage their staff to report any cannabis addictions they may develop so that they can be accommodated in compliance with the Human Rights Act.
Drug and Alcohol Policy – The Next Steps
Employers are encouraged to be proactive by reviewing and updating their policies and procedures regarding cannabis use. If intoxication in your workplace poses a risk to safety, you likely already have a policy in place to forbid consumption of any substance that causes impairment at work.
Remember that testing for substances is acceptable only in limited circumstances. Any related policy should be reviewed by a lawyer, as should any cannabis-related termination to ensure human rights requirements are met.
Contributed by Chantal Roy from Marcil Lavallée. This piece was produced as a part of the quarterly Canadian Overview, a newsletter produced by the Canadian member firms of Moore Stephens North America.