What employers and employees need to know to keep workplaces safe and productive in the age of legal cannabis
Now that recreational cannabis has been legalized in Canada, many employers may have questions on the effects of cannabis in the workplace, especially if they had not already implemented or updated a drugs and alcohol policy for their workplace. The short answer is from a practical perspective: Nothing much has changed. The issues that arise from cannabis legalization are really no different than the issues that have long since existed in the workplace stemming from alcohol and other drugs.
Federal Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts came into force on Oct. 17, 2018. The new cannabis regime includes:
• Legalization of possession of 30 grams or less of dried cannabis for someone 18 years of age or older. Possession of more than that amount still remains a criminal offence, whether at home or in a workplace.
• Legalizing possession of up to four cannabis plants in a private residence for personal use. It remains an offence to have more than that amount or to have them in a public place.
• Creation of a new regulatory regime for production, distribution and sale of cannabis to persons 18 or 19 years of age or older (exact age depends on the province or territory) by authorized and licensed sellers.
Drug and alcohol policies
It’s important to have a clear policy regarding workplace impairment and the use of drugs and alcohol circulated to all employees. A comprehensive policy will also address recreational and medicinal cannabis in the workplace as well. The policy should also be acknowledged and signed by every employee as to ensure everyone is on the same page regarding expected conduct in the workplace and potential consequences if not adhered to.
A key role of a well-developed policy is in balancing employer needs and employee needs. Employers have an obligation to maintain safe work environments and an interest to limit liability while employees are entitled to privacy, accommodation for disability and safe work environments.
As a practical matter, workplace drug or alcohol policies should not be unreasonably or unnecessarily restrictive on cannabis in the workplace so as to avoid grievances being filed and challenges by the union in a unionized context and general difficulties of enforcement in the non-unionized work environment.
Key components of a drug and alcohol policy including cannabis
While policies should be tailored to fit the specific work environment, the following areas — as suggested in the Canadian Centre of Substance Use and Addiction’s 2018 Review of Workplace Substance Use Policies in Canada: Strengths, Gaps and Key Considerations as issues to organize policies around — provide a good starting point for building an effective policy that includes cannabis in the workplace:
• Objective and scope. The policy should include a statement regarding the purpose and goals of the policy, what substances are covered, to whom the policy applies and the roles and responsibilities of those parties.
• Prevention. This component includes elements aimed at reducing and deterring substance misuse. It is about being proactive, which may include education and training aimed at creating a healthy workplace culture; i.e., ensuring all employees understand the drug and alcohol policy and their responsibilities, encouraging healthy living and stress management.
• Observation and investigation. The policy may include how the employer will respond to situations of suspected impairment or use at work. This is in line with the employer’s duty to inquire under human rights legislation. Observation may include behavioural or performance indicators. In safety-sensitive workplaces, some employers may choose to include testing. However, they should be advised of the unreliability of testing and the effectiveness of how the results translate to the workplace.
• Support. Does the organization offer any employee assistance resources? The policy should describe any supports available to employees to help reduce drug or alcohol dependency.
• Return to duty or work. In this section, the policy should describe the accommodation process or reference the organization’s already established accommodation policy. The policy should include the process for seeking accommodation for employees affected by a drug- or alcohol-related disability and also include the employer’s commitment to work with the employee to ensure the employee is accommodated and a return to work is facilitated. An employer has a duty to accommodate an employee up to the point of undue hardship.
• Non-compliance. In this section, the policy should clearly set out the rules by which employees are expected to abide as it relates to workplace impairment, use or possession and specify potential disciplinary measures that may be taken if there is a breach. In a unionized environment, it is important to also consult with the union, as a key stakeholder, with respect to disciplinary measures. Discipline should be proportionate to the misconduct and just cause termination should be reserved for the most severe conduct.
• Review and evaluation. To ensure continued relevance, effectiveness and that the policy remains up to date, the policy should be reviewed periodically and adjusted to suit the needs of the workplace. This process should be consultative and include affected parties, such as employees, union representatives, human resources and individuals tasked with implementing the policy.
• Legal requirements. A policy should meet all federal, provincial or territorial legal requirements such as health and safety, employment standards and human rights.
Above all, the drug and alcohol policy, including cannabis in the workplace, should consider the intended audience and be drafted using simple and plain language so it can be easily understood. As there may be potential overlap with other policies such as accommodation, absenteeism or sick leave policies, it’s important to review the policies in conjunction with each other to ensure consistency throughout, from the language to the application.
Busayo Faderin is an associate lawyer at Monkhouse Law where she practices Employment, Human Rights and Disability Insurance Law. She can be reached at [email protected]