The date set for the legalization of marijuana in Canada is now just over 7 months away. With legalization looming and the holiday season upon us, it is now more important than ever for employers to take proactive steps to respond to the changing legal and social landscape. However, almost half of Canadian companies surveyed in recent months admitted that they weren’t yet ready for the changes that legalization may bring.
What is changing
Recreational marijuana use is on track to be legalized in Canada by July 2018, making Canada the first G7 country to legalize the drug nationwide and the second in the world to do so after Uruguay.
The proposed federal law will allow the Minister of Labour to make regulations relating to smoking in the workplace and the provinces have started their own preparations. The current Ontario government intends to sell marijuana in up to 150 stores run by the LCBO to people 19 and older. The new rules would be similar to those already in place for alcohol and tobacco – i.e., recreational cannabis use would not be allowed in:
- any public place;
- workplaces; and
- motorized vehicles.
Ontario has also proposed new measures to address drug-impaired driving, including creating a zero tolerance approach for commercial drivers, however there is an ongoing debate about the reliability of road side saliva testing to confirm impairment.
What employers need to do
Employers should be ready to review and amend workplace policies as the new federal and provincial laws come into force. Addressing medical use will require a different approach than recreational use.
In addressing recreational use, employers should approach marijuana much the same as they presently deal with alcohol. Employers can continue to be able to expect and require their employees to show up sober and ready to perform their duties. Employers will, however, need to revise existing, soon to be outdated policies. One change will include amending references to marijuana usage as “unlawful off-duty conduct”. In making revisions to policies and procedures, safety considerations should be central to any updates. Policies should clearly account for the various ways in which cannabis can be consumed, given the increased popularity of more difficult to detect edible forms. Safety-sensitive positions, such as those requiring the operation of heavy machinery will need to be specified and clearly set out.
As I wrote in April, the TTC was successful in implementing a randomized drug testing policy, upheld by the Superior Court’s Associate Chief Justice, Frank Marrocco, which could be an indication that this is an area that will be the subject of litigation, evolution, and debate for some time to come. Employers should, of course, exercise caution in implementing random testing, as you must illustrate evidence of enhanced safety risks in the workplace to justify this type of policy, i.e., establishing that a position is safety-sensitive is not sufficient in itself.
While medical use of cannabis has been legal in Canada since 1999, legalization and the trend towards broader social acceptance will likely lead to a rise in issues in this area for employers. In Ontario, medical cannabis users will be subject to the same smoking rules as tobacco and e-cigarette users. This means that, under the current proposed legislation, medical users would not be allowed to smoke or use a vaporizer at work, in enclosed pubic spaces, inside motor vehicles, or in any other smoke-free place.
Employers must be generally mindful of the use of marijuana to treat an illness or condition. In light of human rights legislation, employee medical users may be allowed to work while using marijuana. Both federal and provincial human rights legislation requires employers to accommodate employees with disabilities to the point of undue hardship. The spectrum of accommodation expected will depend on a number of factors, including financial ability to accommodate, type of work performed, and the impact of marijuana use on the essential duties of the position. Employee accommodations should be established on a case by case basis and it is important to seek medical proof of prescription and also sufficient medical indication that the employee actually has to ingest marijuana during working hours, if that is the case, together with information regarding the method and regularity of usage relating to an employee’s prescription.
Employers must of course also balance accommodations with their obligations under provincial occupational health and safety laws when determining what adjustments are appropriate.
Employers should also be aware that they may be required to cover benefits claims for employees with medical cannabis prescriptions.
Employers need to review and update existing policies to reflect the rapidly changing federal and provincial rules. Setting sensible workplace policies and guidelines in advance of the legalization date will help to ease the transition.
A careful policy review and update should:
- keep safety concerns front and centre in creating new policies and addressing accommodations;
- clearly delineate between medical and recreational use, and ensure each is addressed with specificity; and
- communicate changes to employees in a straightforward manner ahead of the government’s July deadline.