Yesterday – on October 17th, 2018 recreational cannabis was legalized across Canada. This means that adults will be legally allowed to purchase, use, possess, and even grow cannabis. The result of the impending changes? Employers are left nervously nail-biting and wondering what this means for the workplace.
Well, rest easy – we’re about to debunk some of the myths and clear up some of the smoke around cannabis at work.
For the most part, cannabis can be treated as any other legal impairment-causing substance
What Employers Need to Know
First of all, breathe a sigh of relief: Employees won’t have carte blanche to smoke up on the job. For the most part, cannabis can be treated as any other legal impairment-causing substance, like alcohol. As with alcohol, cannabis consumption during working hours can affect performance and isn’t okay. Employers continue to have a duty to provide a safe workplace, and employees continue to be responsible for showing up fit for work and able to perform their job duties safely.
The bottom line is that regardless of whether a substance is legal, employers can and should prohibit impairment at work (from any substance) and will continue to be able to discipline employees for non-compliance.
While employers can and should prohibit recreational cannabis use and impairment at work, legitimate medical cannabis use is different. Medical cannabis use where an employee is prescribed cannabis by a physician as treatment for illness, injury, or disability will continue to trigger the duty to accommodate up to undue hardship. As with any accommodation, medical cannabis use needs to be looked at case by case and should follow your established accommodation procedures.
What Employers Need to Do to Prepare
Identify where the practical challenges lie for your organization.
Consider and develop action plans in advance for likely scenarios that may arise, such as:
- Addressing suspected impairment in both safety-sensitive and non safety-sensitive positions.
- Preparing for company-sponsored social events and holiday parties where employees may choose to consume cannabis.
- Ensuring employees who are required to cross the Canada-US border as part of their employment can continue to do so.
Review and update your policies and processes.
Updated workplace policies should clearly spell out the different between employees’ medical and recreational cannabis use. Since there is currently no definitive test for impairment, your policies should focus on observable behaviours and suspected impairment and set out clear consequences for non-compliance. Policies you may need to revisit include: code of conduct, substance use, accommodation, scents, driving, drug testing, and smoking (though there may be other policy implications as well!).
This is where it’s essential to include language requiring disclosure of an employee’s need to be accommodated, specifically addressing medical use and addiction.
Educate managers, supervisors, and employees.
Communicate your policy decisions to managers and employees, so that they are aware of your organization’s expectations. Carry out training sessions with all employees and managers, including a policy review and sign off, so there are no surprises for anyone down the road.
Following the legalization of recreational cannabis, employers should revisit their policies regularly (at least annually) and keep an eye on evolving case law to ensure they accurately reflect best practice in this rapidly-changing area.
Your Engaged HR Assignment
There are many nuances and implications for employers in the evolving area of cannabis in the workplace. So, set some time aside to reflect your current practice and policies and ensure your organization is prepared for the changes.
As always, if you have specific questions, or need support revisiting your current policies, this is our bailiwick, and we are always here to help!