Written by Tushar Anandasagar | Associate Lawyer at LeClair and Associates
Throughout 2016, the Liberal Government’s Federal Task Force on Cannabis Legalization and Regulation (“Task Force”) consulted with stakeholders across the nation regarding issues raised by the legalization of cannabis. The Task Force presented its Final Report on Cannabis Legalization and Regulation (“Final Report”) to Parliament on November 30, 2016.
The Final Report contains eighty (80) recommendations to the federal government, including a proposed regulatory framework and commentary regarding workplace safety issues related to the legalization of cannabis. Though it remains open to the Trudeau government to accept or reject any of the Task Force’s recommendations, the Final Report provides some insight into what the government’s regulatory and/or enforcement framework might look like.
Highlights from the Final Report are discussed below.
The Final Report contains the following general guidelines and recommendations regarding the safe distribution and regulation of cannabis:
- Recreational cannabis should be made available only to Canadians over the age of eighteen (18);
- Adult Canadians should be authorized to possess up to thirty (30) grams of cannabis;
- Cannabis should be made available from regulated retail establishments (i.e. storefronts), or via mail order;
- Adult Canadians should be permitted to grow up to four (4) cannabis plants in their residence;
- Advertising of cannabis and cannabis-based products should be heavily regulated, like advertisement of tobacco and alcohol products;
- Rules should be established regarding acceptable drug potency, along with testing and compliance mechanisms; and
- The federal government should dedicate additional funding to public education about the dangers of drug impairment.
Highlights: Chapter 2:9 – Workplace Safety
In preparing the Final Report, the Task Force heard concerns from a range of experts and industry stakeholders regarding the impact of cannabis in the workplace, including commentary from experts in the medical and scientific communities regarding the side effects of cannabis consumption. The Final Report acknowledges that the potential impacts of cannabis in the workplace are particularly concerning in safety-sensitive industries, such as health care, law enforcement, transportation, resource extraction.
Mandatory Drug Testing
The Final Report confirms that there is no Canadian law in place which permits or regulates mandatory drug testing of employees. Court decisions, including those by the Supreme Court of Canada, provide some guidance and suggest that random drug and alcohol testing is not permitted except in limited circumstances.
One of the key issues raised by employers was the need for research to reliably determine when individuals are impaired. The Task Force established (see specifically Chapter 4 of the Final Report) that the ability to determine impairment with cannabis, through technology or specialized training, is significantly lacking as compared to the ability to measure the relationship between consumption and impairment with alcohol.
The Task Force indicated that such new evidence, if obtained, could merit changes to workplace safety policies and legislation, and recommended that the federal government work closely with industry stakeholders, the provincial and territorial governments to consider and respond to the implications of new medical evidence.
Human Rights Concerns
The Final Report also states that federal and provincial Human Rights Commissions have existing policies explaining how drug and alcohol testing must not discriminate, including against those with disabilities, and/or perceived disabilities. In this respect, the Task Force appears to have reinforced the status quo: existing policies and directives suggest that drug testing in workplaces can only be used if it is to satisfy bona fide occupational requirements.
Considerations and Advice to Parliament
The Final Report indicates that during the Task Force’s consultations, employer groups called for significant increases in guidance from federal, provincial and territorial governments regarding appropriate workplace drug use, zero tolerance policies and drug testing policies. To that end, the Task Force made the following recommendations to Parliament:
Advice to Ministers
- Facilitate and monitor ongoing research on cannabis and impairment, considering implications for occupational health and safety policies
- Work with existing federal, provincial and territorial bodies to better understand potential occupational health and safety issues related to cannabis impairment
- Work with provinces, territories, employers and labour representatives to facilitate the development of workplace impairment policies.
Concluding Remarks: Maintain the Status Quo (for now)
The Federal government has yet to confirm the effective date of its controversial legislation, indicating only that cannabis will be legalized in the “Spring of 2017”. Until then, employers and industry stakeholders are eagerly awaiting a formal response to the Final Report from the federal and provincial governments. It is also anticipated that the Ontario Ministry of Labour and/or other affected administrative bodies will publish materials on workplace issues arising because of the legalization of cannabis.
At this point in time, employers are expected to maintain the status quo with respect to their workplace policies and documentation. Organizations are best advised to hold off on implementing changes to their policies until further guidance is provided by the government.
Stay tuned for continuing coverage of this controversial issue over the coming months.
For a full copy of the Final Report, please visit the Healthy Canadians website: http://healthycanadians.gc.ca/task-force-marijuana-groupe-etude/framework-cadre/index-eng.php
Tushar Anandasagar is an associate lawyer at LeClair and Associates P.C. He specializes in Labour and Employment law, with a focus on Workplace Policy Development and Regulatory Compliance.
As seen in our February Be Safe Newsletter
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