Recreational cannabis is now legal in Canada, and with that legalization comes a lot of questions for employers and managers. A recent study by Deloitte revealed that 22 percent of the Canadian adult population consumes recreational cannabis at least occasionally, and a further 17 percent show some willingness to try it. Cannabis consumption is a greater safety and human resources issue than ever before.
The Legal Landscape
The legalization of cannabis does not mean that other relevant legislation goes by the wayside. In fact, the opposite is true and it is the existing legislation that’s laying the groundwork of how legalization of cannabis will be dealt with in the workplace. For example:
The Criminal Code still makes impairment while driving commercially illegal and a serious offence. There is zero tolerance for those driving under the influence of cannabis, alcohol, or any other impairment-inducing substance.
Occupational Health and Safety Act and Regulations (the Act) contains many regulations that prohibit impairment, including Regulation 855 s64, Regulation 629 under sections 12 and 13, and Regulation 854 s15. As well, all general duty clauses may be applied to impairment at work as a result of cannabis use.
The Human Rights Code still requires employers to accommodate, up to the point of undue hardship, employees who use medicinal cannabis or those that have a substance dependency.
Smoke Free Ontario continues to stipulate where smokers, including those of recreational cannabis, may and may not smoke. All Ontario workplaces are covered by the Smoke Free Ontario Act.
Changes and updates to existing legislation are ongoing so employers should ensure they monitor developments.
How Cannabis May Effect Employees
Cannabis use in the workplace is a safety concern. Individuals who consume cannabis are affected differently and may experience:
- Slowed reaction times
- Reduced ability to remember facts and information
- Sleepiness
- Reduced ability to pay attention
- Decreased productivity
- Poor attendance
- Dependence
- Potential psychological side effects such as anxiety, depressed mood, paranoia, panic, or psychosis
These effects may impact an individual’s ability to perform at work and in many cases can create serious safety hazards. Slowed reaction times and reduced focus have a drastic impact on one’s ability to operate a motor vehicle or machinery which is a hazard to oneself and those working around them. Employers need to ensure that they have policies in place surrounding both medical and recreational cannabis use to address such hazards.
Impairment in the Workplace
As with alcohol and drugs, employers can generally expect staff to be free from cannabis impairment while at work, the Canadian government has yet to put forth a definition of impairment with respect to cannabis. Part of the reluctance to define impairment with respect to “per se” limits (an agreed upon measurement of cannabis levels in blood) is that there is disagreement with regard to what an appropriate limit would be. While there are per se limits in place that apply under the Criminal Code to impaired drivers, these per se limits do not (yet) extend past driving.
With no agreed-upon “per se” limit by which impairment can be defined, measuring or testing for cannabis impairment is challenging. Employers will have to be very careful when determining on-the-job impairment, or deciding whether or not they can carry out workplace drug testing to detect cannabis impairment or general use.
What Employers Need to Do
Update Employee Policies to Address Recreational Cannabis Use
As an employer, your primary focus should be updating your employee policies to address recreational cannabis use, impairment on the job, and workplace safety. Many organizations already have policies that address alcohol and drug use, now they need to update the policy language to reflect the legalization of cannabis in Canada. Communicating updates to the policy and clarifying expectations to employees is a key component in your strategy to ensure workers remain safe, and that your organization remains compliant.
Conduct Training on Substance Use in the Workplace
Simply updating your employee policy is not enough. Employers are required to ensure the safety of their employees in the workplace. This means training on cannabis consumption and cannabis impairment in the workplace will need to be delivered. Training should also aim to ensure all employees understand (and confirm their understanding) of the changes to the organization’s policies that are affected by recreational cannabis legalization.
In addition, managers and supervisors will need additional training that includes:
- Recognizing impairment in the workplace
- How to address issues surrounding substance impairment, including cannabis impairment
- How to follow the appropriate processes set out by the employer to respond to any cannabis or impairment related issues
Learn to Recognize Impairment Without Testing
Since drug testing in Canada is still generally not permissible, employers may choose instead to familiarize themselves with other methods of identifying impairment. There may be signs and behaviours that can make impairment more obvious. However, be mindful of the potential issues, which include discrimination against users with medical requirements, or discrimination against workers who may have conditions that produce signs that may be misinterpreted as impairment but are not related to substance abuse. The key here is training for managers and supervisors, or anyone authorized to make assessments about fitness for duty.
Understand the Legality of Drug Testing
Drug testing is only permissible for roles that are safety-sensitive with limited supervision and where the employer can prove that impairment is a safety risk and that not being impaired is a bona fide occupational requirement (BFOR). The employer must be able to show, according to existing standards, that there are inherent risks in the workplace, or that severe consequences may occur as a result of being impaired. In the absence of a BFOR, employers can’t implement drug testing programs, so they must rely on policies, programs, and training to ensure that workers are not under the influence while performing job duties.
Continue to Accommodate Medical Cannabis Consumers and Substance Abuse Addiction
Medical cannabis has been legal in Canada since 1999. The distinction between medical and recreational cannabis is an important one when it comes to the workplace. The Ontario Human Rights Code (the Code) provides protections to employees who use prescribed medical cannabis. The Code also makes employers responsible for providing accommodations up to the point of undue hardship to staff who use medicinal cannabis. However, the Code does not afford the same protections to individuals who consume cannabis recreationally.
The Code also protects those with cannabis addiction, as addiction is considered a disability.
Key Takeaways
- Employers need to implement policies regarding the use of cannabis, impairment, and testing if applicable
- Safety-sensitive roles may have additional restrictions
- Employees are expected to refrain from cannabis use and impairment at work
- Employers should provide training for workers
- Employers should provide additional training for managers and supervisors, and anyone with the authority to assess workers for impairment
- Drug testing may be permissible if employees are considered to be in safety-sensitive roles, or if not being impaired is shown to be a BFOR
- The need to provide accommodations (up to undue hardship) to medicinal cannabis users has not changed
- Employers should regularly review legislation and legal developments, and update their policies accordingly
OSG can Help
OSG has created a Workplace Substance Management Policy with wording to specifically address cannabis. Simply add your organization’s specifics to the existing template, and your policy will be ready to go. You can buy the template now.
For very large or multi-jurisdictional companies, companies with safety-sensitive roles, or companies with special circumstances, OSG can create a 100% customized and specific policy that suits your organization’s unique needs. Contact us to find out more.
We also provide on-site training on Workplace Substance Management, aimed at ensuring everyone in the organization understand your policies and procedures.
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