On April 13, 2017, the federal government introduced the Cannabis Act (Act), which will legalize and regulate the use of cannabis for recreational purposes in Canada (see our April 2017 Blakes Bulletin: Federal Government Introduces Cannabis Legislation. The Act received first reading on April 13, 2017 and, if passed, is expected to take effect on or before July 2018.
The legalization and regulation of recreational cannabis is anticipated to impact employers in a number of key areas. This Blakes Bulletin highlights five key areas that employers should consider in anticipation of the new legislation.
PROACTIVE COMMUNICATION AND POLICY UPDATES
Prior to the Act coming into force, employer expectations about the relationship between cannabis use and the workplace should be clearly communicated to employees and updates to workplace policies may be required. Societal attitudes towards the recreational use of cannabis can be expected to shift in response to the proposed Act, as will the attitudes of some employees. Cannabis will no longer be an “illegal drug” and employees’ attitudes about what constitutes acceptable work behaviour may change. In the absence of clear guidance from employers, a “smoke” break at work may take on an entirely different meaning. Employers, however, will still have a duty to maintain a safe workplace and employees are required to show up fit to work. One way to proactively deal with potential misunderstandings with respect to cannabis in the workplace is to ensure that workplace policies have been updated and that employees have been clearly instructed as to what is and is not acceptable workplace behaviour.
A SHIFT IN EMPHASIS WHEN DETERMINING DISCIPLINARY ACTION
When problem behaviours involving inappropriate workplace cannabis use arise, upon passage of the Act a different balance may need to be struck when determining any corresponding disciplinary action. Under applicable occupational health and safety legislation, employers have a duty to protect the health and safety of their workers. Moreover, employees are expected to show up for work unimpaired and capable of performing their duties in a safe and effective manner. For both of these reasons, an employer will, in many cases, be justified in taking disciplinary action, up to and including termination, against an employee found to be using and/or impaired by cannabis on the job. However, while an employer can currently add the fact that cannabis is an illegal substance to its reasons for taking such disciplinary action (i.e., the employee is “breaking the law” by using or being in possession of cannabis for non-medical purposes), that argument will no longer be available in the same way upon the Act coming into force. As a result, employers may need to be more restrained in their use of disciplinary action when dealing with cannabis-related misbehaviour in certain circumstances. Discharge may still be an appropriate response in certain situations, but much like other instances of workplace behaviour/misbehaviour the facts around cannabis use will need to be assessed by the employer on a case-by-case basis.
DUTY TO ACCOMMODATE
The Act’s impact on the prevalence of cannabis dependency or addiction is currently a matter of speculation; however, it is not unreasonable to expect that it may increase. Employers should be aware that if and when employee recreational cannabis use rises to the level of dependency or addiction, the potential for a discrimination claim under applicable human rights legislation may arise if the employee believes that they are being treated unfairly by their employer due to such use. Under applicable human rights legislation, employers generally have a duty to accommodate employees with disabilities (including addiction) to the point of undue hardship. Employees with cannabis addiction may therefore be entitled to accommodation depending on the type of work performed and the impact of cannabis use on the employee’s duties. In certain cases, human rights tribunals in Canada have already recognized cannabis addiction as a disability requiring accommodation by an employer.
EXPANDED USE OF CANNABIS FOR MEDICAL REASONS
It can be anticipated that legalizing cannabis for recreational purposes will reduce the stigma around using it for medical reasons. While the medical use of cannabis has been permitted for some time, we anticipate seeing more demands from employees that their medical use of cannabis be accommodated. There may also be increasing expectations related to whether cannabis for medical reasons will be covered by employee benefit plans. If cannabis becomes legally available for recreational purposes, the possibility of employees self-medicating and claiming to use cannabis for medical purposes without a doctor’s prescription could complicate existing approaches to accommodating employees claiming to use cannabis to treat a medical condition.
Drug testing is another area that may require increased attention from employers if the Act leads to increased cannabis usage by employees. As with testing for other substances that can impair an employee’s ability to perform his or her duties safely and effectively, employers seeking to implement cannabis testing should carefully consider the legality of the testing and the testing method(s) to be used. Employers who already have drug testing measures in place should also review those measures and underlying policies to ensure that best practices are being carried out and to modify those practices if/as necessary in light of the Act. For a discussion of a recent example of judicial consideration of a drug and alcohol testing policy in a safety-sensitive workplace, see our April 2017 Blakes Bulletin: Ontario Court Allows Workplace Random Drug and Alcohol Testing to Proceed.