Following the recent legalization of recreational cannabis in Canada, now is a good time for Canadian employers to review their workplace policies to ensure they respond to possible cannabis consumption by employees. Employers are reminded to:
- Update Policies. Employers should review workplace rules regarding on-duty employee conduct to ensure all forms of impairment are covered. Post-legalization, it is important to remember that employees do not have an unfettered right to cannabis consumption. Employees are not entitled to be impaired at work, to consume marijuana in the workplace (except in exceptional circumstances, as discussed below) or to unexcused absences and late arrivals. Policies should continue to require that workers are fit to carry out their job duties in a safe and efficient manner, rather than focusing on the causes of potential impairment – be it cannabis, alcohol or any other substance. Employers should require employees to disclose the use of medical marijuana, or any prescription medication, while at work.
- Prioritize Safety. Employers must to continue to ensure that a worker’s ability to work is not impaired so as to endanger themselves or others. Employers may prohibit cannabis consumption during work hours, or in the hours before work, where the person’s ability to work safely would be affected by the cannabis use.
- Enforce Existing Laws. Existing municipal, provincial and federal laws should be incorporated into workplace policies. For example, employers must ensure that any smoking occurs outdoors and in accordance with Vancouver’s “smoke-free” bylaw.
- Avoid Discrimination. Employers are required to comply with their duty to accommodate medical marijuana use when it is properly prescribed as treatment for a disability. In doing so, employers must consider the employee’s medical needs and the employer’s duty to ensure a safe workplace. While there is no corresponding obligation for recreational cannabis use, employers may need to consider whether the worker suffers from a drug addiction which gives rise to a duty to accommodate and allow the employee an opportunity to seek treatment. Employees should be required to report drug use and impairment, both of themselves and of coworkers, to allow employers to take action to ensure safety.
- Review Impairment and Testing. Employers should review their practices for impairment testing to avoid unwarranted discipline, particularly for off-duty cannabis use which may not result in impairment at or be connected to work. Existing drug testing methods may detect past cannabis use but not present impairment. Employers are reminded of the Canadian Human Rights Commission’s recognized signs of impairment, such as slurred speech, the odour of alcohol or drugs, forgetfulness, glassy eyes and unsteady gait.
- Conduct Training. New or updated policies are only effective if employees and employers are made aware of, understand and adhere to the policies. Employers should remind employees regarding their expectations and obligations regarding cannabis use and the need to ensure workers are free from any form of impairment. Supervisors and managers should be trained to know what to do if they suspect an employee is impaired.
The key takeaway is that employers have the right and the obligation to set workplace rules to ensure a safe workplace free from impairment. Policies should be reviewed with counsel to ensure compliance with legal obligations.