Overview

The federal Cannabis Act comes into effect on October 17, 2018. As such, the recreational use of cannabis is now legal in Canada. What does this mean for employers? To prepare for the legalization of recreational cannabis, employers should have four (4) key things in place:

• clear prohibitions against the use of recreational cannabis in the workplace;
• a comprehensive drug and alcohol policy;
• tools that enable supervisors to spot impairment and know when to require testing to determine if employees are impaired, on a balance of probabilities; and,
• plans developed with individual employees to accommodate either the prescription use of cannabis or employees with disclosed addictions issues.

Prohibiting the Recreational Use of Cannabis at Work

While the recreational use of cannabis is now legal, this does not mean that employers must permit the recreational use of cannabis at work. To address this, Ontario has enacted its own legislation, also named the Cannabis Act, that explicitly prohibits the smoking or vaping of recreational cannabis in the workplace.

A clear drug and alcohol policy will set out a company’s expectations with regards to cannabis use within the broader context of prohibited drug and alcohol use.

Drug and Alcohol Policies

Recreational cannabis use can be treated similarly to use of other drugs or alcohol in the workplace. If employers already have a drug and alcohol policy in place, this can apply to any potential recreational use of cannabis as well. If employers don’t already have a drug and alcohol policy in place, they should develop one. The language of any prohibition on impairment should be directed at job performance, and not focus simply on detecting and punishing those who use drugs or may have addictions issues.

Training for supervisors should be twofold. Supervisors should be trained on how to detect observed impairment. This may include providing a checklist of symptoms of cannabis use. Supervisors should also be trained on the proper procedures to follow once they spot potential impairment. This includes determining when it is appropriate to require testing for impairment, and what action should be taken if an employee tests positive for cannabis use. This training will help to ensure that company drug and alcohol policies are being appropriately enforced.

Detection

If an employer suspects that an employee is unfit for work due to using cannabis, drug testing may confirm this, and help to determine whether an employee is violating the company’s drug and alcohol policies. Testing should be conducted to help confirm impairment if:

• there is a reasonable basis to believe that an employee is currently impaired by drugs or alcohol, (which may arise through observation); or,
• a significant event such as a workplace accident or “near miss” involving the employee, occurs.

Oral fluid testing is the preferred testing method because it is less invasive and quicker than urinalysis. Oral fluid testing is the best indicator of recent drug use currently available, however it may also detect historic use. For example, if an employee used cannabis two days ago, and is no longer impaired, oral fluid analysis may still result in a positive test. As such, it should be used cautiously, and test results should be considered in conjuncture with documented observations or apparent impairment.

Using observation or results of a drug test alone will be risky if used as grounds for discipline. Employers should record pre-test observations, conduct testing where appropriate, and then follow-up with questioning to determine whether, on a balance of probabilities, an employee is impaired at work.

Accommodation of Employees with Addictions

The Ontario Human Rights Code (“Code”) requires employers to accommodate employees with disabilities or perceived disabilities, including addictions and the use of prescription cannabis, to the point of undue hardship.

The legalization of cannabis for recreational use does not change the current laws for the use of prescription cannabis. Under the Code, prescription use of cannabis and addictions must be accommodated up to the point of undue hardship. As such, employees should be required to disclose their addiction, or their prescription use of cannabis. This disclosure should be accompanied by a doctor’s note confirming treatment for addiction or medical use of cannabis. To accommodate this, employers and employees will work together to create an accommodation plan that ensures any addiction or prescribed use of cannabis does not compromise the performance, or safety, of anyone in the workplace. An employee will have a positive duty to co-operate and comply with such a plan.

While accommodation must be done up to the point of undue hardship. It does not require:

• employees to compromise their own safety or the safety of others;
• to smoke or be impaired in the workplace; or,
• to be late or absent without excuse.

Key Takeaways

As of October 17, 2018, it is legal to use cannabis recreationally. Employers should be prepared. Companies should have drug and alcohol policies that are aimed at ensuring positive job performance and a safe workplace. Employers will not have to permit the recreational use of cannabis in the workplace. However, they should be prepared to accommodate those employees with addictions, and employees using prescription cannabis. Employers should seek legal advice regarding the language of, and implementation of any drug and alcohol policies dealing with the use of recreational and medical cannabis.

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.