Employer Liability: Cannabis in the Workplace
Recreational cannabis has been legal in Canada now for more than 6 months; however, many businesses, and even benefits providers, are still catching up with the legal implications of this social change; and many are unsure how it can impact the workplace. In fact, the 2019 Benefits and Pension Summit in Toronto included this topic to help attendees get up to speed on how to update their policies. But the changes should go further than your company’s benefits plan; employers should closely review their company policies, and wording around workplace impairment. We explain some of the things you should know about legalized cannabis in the workplace, employer liability, and employee responsibilities.
Your right to prohibit Cannabis use in the workplace
Legalized Cannabis can be treated the same way as alcohol impairment. An employer can prohibit cannabis use in the workplace, or during working hours in their employee handbook and policies. Policy violations can be managed with progressive employee discipline; this could potentially result in termination for just cause when properly discussed with the employee, and documented.
However, workplace impairment due to addiction could be considered a disability by courts, adding a layer of complexity. There have been cases of employees being reinstated because employers failed to address and accommodate the employees disability. Employers should address this in their HR policies, and have a plan in place to accommodate employees with a recognized substance abuse problem.
Cannabis testing – is it legal?
Canadian case law hasn’t yet provided a precedent allowing employers to automatically test for illicit drug or alcohol use. However, courts may permit random testing if employers ensure employee privacy, and if testing is shown to be a proportionate response to legitimate safety concerns. However, proving impairment may be a challenge for employers, as THC can stay in a person’s system for days. In fact, there is no clearly defined THC level that indicates impairment.
Medical Cannabis – do employees need to disclose?
All employees are required to inform their supervisor of any violation of the Occupational Health & Safety Act, or any hazard they are aware of which could endanger their own or their coworkers safety. For medical cannabis users, this means they must to ask their health care provider about the potential effects of prescribed cannabis, and disclose any concerns to their employers. As long as an employee has made a full disclosure, employers have a duty to accommodate workers who have been prescribed cannabis.
If safety is critical to the work environment and employers have to meet specific safety standards to operate, employee disclosure obligations are critical. The employer may have more rights to investigate incidents of impairment. For roles where safety isn’t a concern, the requirement is less clear. Outlining expectations around medical cannabis use disclosure in your employee policies can provide guidance to your employees, and managers.
Jobs where safety is a concern
Canada’s impaired driving rules now extend to driving under the influence of cannabis; and Saskatchewan has taken a zero-tolerance approach to cannabis-impaired driving. Likewise, jobs that involve driving or operating heavy machinery (both of which require a clear head and careful attention) can have the strongest policies against cannabis impairment on the job (whether for recreational or medical use) – they’re backed by strong provincial and federal legislation. Make sure your employees know the provincial driving impairment rules, and the legal consequences of an infraction.
We’re still in the early stages of legalized cannabis in Canada; for the time being, employer liability, and how courts will handle cases of workplace impairment from marijuana remain to be seen. All employers should clearly outline their employee and HR policies around cannabis in the workplace, medical cannabis use disclosure, and employee cannabis addictions. Doing so will better position you to support your staff, and maintain occupational health and safety standards in your workplace.
If you’re looking for even more information on this topic, check out the following resources: