Although recreational cannabis was just legalized in Canada (in October of 2018), dealing with cannabis in the workplace is not entirely new for employers. Medicinal use has been legal in Canada since 1999, and many human resources professionals have been faced with employees who have been prescribed medicinal pot and wish to use it at or before coming to work.
With the federal Cannabis Act coming into force on October 17, 2018, employers and employees alike have had questions on how this affects the potential for cannabis use at work. The short answer is – not much has changed. The implementation of the Cannabis Act has not led to a new world of smoking up at work. Employees still cannot be intoxicated at work (regardless of the cause); and employers must still accommodate legitimate medical use.
Cannabis use at work is a health and safety issue
Occupational health and safety laws prohibit employees from attending work when they are impaired to the degree that they might pose a danger to themselves or others. Whether the cause of impairment is a legal substance (such as alcohol, cannabis, or prescription medication) or an illegal drug, impairment in the workplace can create a significant risk of injury to the impaired employee, co-workers, or members of the public.
In British Columbia, the Workers Compensation Act and Occupational Health and Safety Regulation prohibit an employee from remaining at work where their ability to work is affected “by alcohol, a drug or other substance so as to endanger the person or anyone else.” Similarly, if an employer is aware of such impairment, it must remove the employee from the workplace. An employee must also advise their employer if their ability to safely perform their work is impaired for any reason, including by use of recreational cannabis.
The act of smoking at a work is also prohibited. BC has passed the Cannabis Control and Licensing Act, which has a variety of restrictions on where a person may smoke cannabis, including in any workplace. So, whether an employee wants to smoke weed or cigarettes on the premises, an employer has no option but to prohibit both.
Cannabis use has other workplace implications
Aside from statutory health and safety obligations, employers have additional bona fide reasons to restrict cannabis use and impairment at work, such as requiring employees to perform their duties efficiently and competently. These performance expectations should be clearly spelt out in an employee’s contract or workplace policies, which then allows an employer to review performance and discipline if necessary for a breach.
For some groups of employees, additional restrictions may be reasonable as well.
Admitting to cannabis use can cause problems travelling to certain countries, including the USA, or even result in a lifetime ban to future entry into the USA. Where an employee is required to travel to the USA for work, it may be reasonable to make it a condition of continued employment that the employee refrain from cannabis use even outside of work, to ensure that cross-border travel isn’t impeded.
Some types of cannabis use must be accommodated
Even as recreational use has become legal, it is important for employers to be aware that some cannabis use may need to be accommodated. If an employee uses cannabis to treat an illness or injury, or if the employee claims that use is due to an addiction, this will trigger the duty to accommodate and the employer must engage the employee in a process of inquiry.
The duty to accommodate doesn’t meant that employers have to allow employees to use cannabis at work, or allow them to work while impaired. It does mean that there needs to be an evidence-based evaluation of the employee’s legitimate medical needs and the employer’s bona fide occupational requirements. It is important for an employer to do an individualized assessment of the employee’s medical status and job duties, and to explore what can be done to adjust workplace conditions, short of “undue hardship” on the employer.
If an employee claims they are using cannabis for medical reasons, the employer should ask further questions and determine whether the employee has a prescription or medical documentation that meets the requirements of the Cannabis Regulations. Failing this, it is reasonable for an employer to apply any policies prohibiting an employee from attending work impaired (see, for example, the BC Human Rights Tribunal decision in French v. Selkin Logging Ltd.).
What do employers need to do?
Despite there being no real legal changes in relation to cannabis use at work, it can be expected that social normalization of pot could lead to more employees coming to work impaired. Like many human resources challenges, an employer’s best defence against this is to implement clear policies and ensure that employees are trained regularly. In short, recreational cannabis should be treated the same way as alcohol, and medicinal cannabis should be approached with the same caution as any other prescription medication.
Employers should review their policies on workplace intoxication to ensure it is clear that impairment at work is prohibited, regardless of whether it is caused by legal intoxicants such as alcohol or cannabis, prescription medication, or by illegal drugs. If an existing policy prohibits cannabis use solely on the basis of it being illegal, updates should focus on impairment instead. Definitions of impairment should be focused on the employee’s ability to perform their duties safely and competently, not on stereotypes of cannabis use.
At the same time, policies on accommodation should also be revised to ensure that the process is triggered in appropriate cases of medical use or addiction. Asking the right questions, obtaining relevant information, and assessing all reasonable options will be vital for employers to properly address their duty to accommodate in such a situation.
As always, this article can only provide a very brief overview of what is a complex legal and regulatory framework, so it is imperative to obtain legal advice if a specific situation arises.