As of October 17, 2018, the use of both recreational and medical cannabis is legal in Canada. This presents a number of important considerations for employers in order to ensure the continued health and safety of their workplace, their employees and, as applicable, the public.

The legal cannabis regime in Canada is complex, and a number of applicable laws relate to the use of cannabis in the workplace, including:

• the federal Cannabis Act^{1Canadian Human Rights Act, RSC 1985, c H-6.} (and related regulations, including the Cannabis Regulations^{2Alberta Human Rights Act, RSA 2000, c A-25.5.});
• federal and provincial occupational health and safety laws (for federally and provincially-regulated workplaces);
• human rights law (federal and provincial), including disability law;
• union or collective labour standards laws and agreements; and
• privacy law (especially in relation to drug and alcohol testing in the workplace).

ADDRESSING CANNABIS USE IN WORKPLACE POLICIES

As with the use of alcohol and certain prescription and over the counter medications by employees, employers should ensure their health and safety policies address the use of cannabis in order to prevent employee impairment during work. This is especially important in safety-sensitive workplaces.

Under occupational health and safety legislation in Canada, an employer has a duty of due diligence to provide a safe work environment and to take all reasonable precautions to protect the health and safety of employees and others in the workplace. An employer is also responsible for addressing physical and/or psychological hazards in their workplace, including when impaired.

This is especially significant given that the legal use of cannabis can have effects on a person for up to 24 hours. Accordingly, businesses and employers should review and, if necessary, revise their current policies on substance use and impairment with an experienced employment lawyer in order to ensure the use of cannabis (and other substances) is properly addressed in all relevant workplace policies.  There is a wide spectrum of policy options available, from strict prohibition outside of legally required accommodation to fit for duty policies.

An experienced employment lawyer can also help employers to develop and implement a policy to monitor, prevent and report workplace impairment, including the implementation of a hazard prevention program when the use of cannabis and other causes of impairment represents a hazard. Employers should seek legal advice before conducting any workplace drug and alcohol testing on employees, as these tests have been considered discriminatory in Canadian employment law and involve a number of complicated legal issues.

EDUCATING EMPLOYEES ON WORKPLACE POLICIES

It is incumbent on employers to also educate employees on their workplace health and safety policies, including substance use and impairment policies, in order to ensure that all employees are informed of their work-related health and safety responsibilities.

For example, employees are responsible for ensuring they work safely, and for understanding the impact of using substances (both medical and non-medical/recreational) on their safety, other employees’ safety, and (as applicable) the public’s safety.

An experienced employment lawyer can help employers review their employee education in respect of workplace policies, in order to ensure that an employer is adequately and effectively educating employees on rights and responsibilities in the workplace.

THE DUTY TO ACCOMMODATE

Canadian employers have a duty to accommodate employee disability to the point of undue hardship under both federal and provincial human rights legislation, including the Canadian Human Rights Act^{3Cannabis Act, SC 2018, c 16.} and the Alberta Human Rights Act^{4Cannabis Regulations, SOR/2018-144.} This can include, for example, a duty to accommodate substance dependence (the use of drugs or alcohol) and/or the use of medical cannabis (medical marijuana) to treat a medical condition.

However, the duty to accommodate has limits. It does not entitle an employee to be impaired at work, to endanger the employee’s own safety or the safety of others, or to smoke at work. Ultimately, employers still bear responsibility for ensuring the health and safety of their employees and should establish rules for the non-medical use of cannabis similar to alcohol use policies for employees.  From a safety perspective, employers should assess whether an employee’s use of cannabis (or other substance) interferes with the employee’s ability to work safely.

An employer is typically not entitled to ask for employees’ specific medical information, treatment plans or diagnoses but can generally ask about expected length of disability and absence and information relating to work restrictions to assist with accommodating an employee.  The employee also has a responsibility to work with the employer to find a reasonable accommodation. This responsibility includes providing the necessary medical information to the employer. Note that the law also imposes a duty to inquire where an employer suspects an employee may require accommodation for a disability. In these cases, legal advice should be sought by the employer from a lawyer experienced in human rights employment issues.

Accommodation must be attempted by the employer in these cases.  Potential accommodations might involve granting an employee time off work for treatment or placing the employee on a return to work plan with conditions around future cannabis use. However, the law does not uniformly define “undue hardship”, and assessments are typically made on a case by case basis. As a result, determining whether accommodation meets the threshold for “undue hardship” requires undertaking a factual and legal assessment of the relevant circumstances.

The duty to accommodate/inquire is a very complex area of law, and an experienced employment lawyer can assist employers in navigating their legal obligations with respect to employee cannabis or other substance use/abuse in the workplace.

CARSCALLEN LLP’S EMPLOYMENT EXPERTISE

Whether you are an employee or an employer, Carscallen’s experienced team of Employment, Labour and Human Rights lawyers can assist you. Our lawyers specialize in practical, individualized advice to help you understand your rights, duties and responsibilities as an employer or an employee. We have extensive experience in drafting and advising on a wide range of workplace policies for companies and organizations, include drug and alcohol policies. We also have experience advising employers on their legal duty to accommodate disabilities, and other aspects of disability law and human rights law.

Our team of lawyers provide tailored, proactive advice to help successfully navigate every stage of the employment relationship. We have the legal expertise to help minimize problems and disputes before they happen, as well as the ability to resolve conflict quickly and constructively when it arises.

Please contact any member of our Employment, Labour and Human Rights team with any questions you may have about workplace policies that address cannabis use, or any other personal or business employment-related issues. If you’re interested in receiving further updates about Employment Law, please subscribe in the link below.

If you have any cannabis-specific questions or comments, please contact John Davidson or any member of the Carscallen Cannabis Group.

• 1
  Canadian Human Rights Act, RSC 1985, c H-6.
• 2
  Alberta Human Rights Act, RSA 2000, c A-25.5.
• 3
  Cannabis Act, SC 2018, c 16.
• 4
  Cannabis Regulations, SOR/2018-144.