Legalized Cannabis: Employer FAQs
Recreational use of cannabis in Canada will be legal as of October 17, 2018. Both employees and employers have questions about the ways in which legalization might impact their workplaces. This Q&A is intended to assist employers in both anticipating questions and considering changes to work rules, policies and procedures.
It is recommended that employers:
- Review and amend existing workplace policies and procedures to meet health and safety obligations once the Cannabis Act comes into force.
- Conduct a hazard and job-safety assessment to determine the safety sensitive jobs.
- Ensure employees review copies of the new workplace policies.
- Hold training sessions for all employees.
- Ensure management is trained on how to identify signs of impairment, and how to respond appropriately.
- Review policies periodically and as necessary.
- Keep in mind that workplace approaches will vary and business partners, customers, etc., might have different policies and permissions when it comes to possession and consumption.
- Keep in mind that cannabis is still one of many mood or mind altering substances, from over the counter or prescription drugs, to alcohol, to illicit substances.
- Consider testing methodologies for safety sensitive workers, and in particular choosing oral swab or those that show current impairment in order to keep up with the anticipated increase in recreational use and the tighter scrutiny from adjudicators in accepting positive test results in relation to the discipline of a worker.
- Keep in mind that legalized cannabis has limits, including current prohibition on methods of consumption (e.g. edibles) and on amounts for possession.
Anticipated employee questions:
1. I am a recreational user. Do I have to tell my employer?
The starting place is no. An employer cannot directly regulate its employees’ off duty activities. However, the legalization of cannabis does not suddenly give employees the right to freely use cannabis in the workplace or come to work adversely impacted by its use. An employer can expect its employees to show up to work fit for duty and able to perform their duties in a safe and effective manner. Disclosure may become relevant if an incident occurs and there is a resulting investigation, or if an employee wants to consume cannabis at work-related events or activities. Employers have the ability to implement policies to prevent alcohol and drug use in the workplace. Employers can also manage safety risks in the workplace by implementing a drug policy that encourages or even requires employees to proactively disclose drug addictions before breaching the policy.
2. Can I consume cannabis recreationally before or during my shift, or on one of my breaks?
Many employees will compare consuming cannabis to drinking alcohol. A restriction on its use or possession in the workplace may be questioned particularly in workplaces situations where alcohol is permitted (e.g., customer lunches, social events, conferences, etc.). Regardless, employers are entitled to restrict the use of cannabis at the workplace, and many might since its impact and lasting effects are not yet well understood. Employers can also insist that employees refrain from using cannabis (similar to any mood or mind altering substance) in a manner that adversely affects their ability to safely or productively perform their jobs, and the interpretation of “adversely” will vary depending on the employer’s type of business.
3. How many hours before my shift can I consume cannabis?
Employers are not well suited at this time to respond to this question. An employer cannot assess the duration or extent of the impact that cannabis will have on its employees. Employers can insist that employees refrain from using cannabis (similar to any mood or mind altering substance) in a manner that adversely affects their ability to safely or productively perform their jobs, and the interpretation of “adversely” will vary depending on the employer’s type of business.
4. I understand that I cannot consume at work, but can I have it in my possession at work?
Some employers will allow cannabis at the workplace, like unopened alcohol, if it is controlled, un-accessed and out of sight. Other employers will prohibit possession of cannabis at work, particularly in safety sensitive workplaces or where there is a prohibition on consumption. Possession makes access and use easier; however, simultaneously, we expect that cannabis will become more normal when it comes to gift giving, gift getting, dinner party items, and the like, which requires transport potentially during or after the work day. Employers will need to consider whether any cannabis accidently brought to the workplace by an employee will be discarded or safely stored off the work premises in a secure location. If the employer chooses to discard the item, employers should ensure employees have expressly and properly accepted that the employer can take and discard the substance if they are brought to the workplace. Employers also have to consider what their policies will be, if at the time of collection of a substance in contravention of a policy, the employee revokes their consent to the taking and discarding of the substance.
5. What if a customer gives it to me as a gift, similar to being gifted a bottle of wine or chocolates filled with wine?
Employers and employees may receive a bottle of wine or alcohol as a gift of gratitude, for holidays and so forth. Employers will need to consider their rules for receiving wine and whether the same rules will apply to gifts of cannabis. Controls and restrictions on access and use can be in place to enable the receipt of these gifts in workplaces where use or possession of cannabis might otherwise be prohibited.
6. My position requires me to socialise with my customers. If my customer offers me cannabis, or if they are all doing it, am I allowed to partake?
In some industries employers might be OK with allowing consumption during certain social exceptions, and those employers should consider fitness for duty policies and rules about boundaries, limits and maintaining professionalism. Employers need to recognize that use will become normal and more socially acceptable. Still, employers will need to ensure that their work rules align with their obligations to health and safety, privacy and human rights laws, which will become of heightened importance to safety sensitive industries.
7. What about wearing clothing that shows or promotes cannabis at work, or outside of work when I am representing the company?
Many employers have casual Fridays or otherwise allow for business casual attire. Other employers allow their employees to dress leisurely and casually. Employers can require employees to dress in a professional and conservative manner, which includes limiting pictures and logos. However, employers ought to consider taking a consistent approach to logos of varying natures, and whether any particular logo is offside other workplace rules.
8. Does the company have any objections to me having paraphernalia at work?
This will depend on an employer’s workplace policies. If there is a site ban of drugs and alcohol in place, it is expected that an employer will include the possession of paraphernalia in their bans. It is expected that employers who restrict the use and possession of cannabis will also restrict the possession of paraphernalia as it facilitates the use of cannabis at the workplace and may carry odors.
9. What if I am on call but not working?
Most employers with on call employees will already have policies in place about remaining or being fit for work. Some employers will have strict policies about remaining fit for duty while on call and being able to report to work, fit for duty, if they are called in. Other employers will have policies that do not require the employee to remain fit for work while on call, however will require the employee to disclose they are unfit should they be called in for duty and refuse the work without reprisal. Employers must be mindful of privacy rights when requiring an employee to disclose if they are unfit for work, which includes considering the extent of the information they collect. Existing policies should be reviewed to ensure that they do not subsume cannabis in the definition of illicit drugs/substances once it is legalized.
10. Do I need to tell anyone if I witness or become aware of someone consuming during working hours or on company property?
Employers have the right to require employees to tell their employers if they witness or become aware of someone consuming during working hours or on company property in order to protect the workplace and prevent health and safety hazards. It is recommended that employers provide training to management on how to identify signs of consumption and impairment and how to respond appropriately. Employers should ensure that their policies are aligned with these requirements (e.g., whether consumption during working hours is prohibited).
11. How can you tell me you have zero tolerance for cannabis in my system when it is legal?
Employers could face greater use of cannabis by employees once it becomes legal. Employers with safety sensitive workforces may insist on a zero tolerance approach. However, with increasing use it could become more problematic particularly when it comes to employees using on their days off. Employees might raise privacy concerns. Testing methodologies are significant considerations for resolving this issue. Some employers might consider moving toward the more minimally intrusive testing mechanisms that show current impairment (e.g., breathalyzer or oral swab). Other employers might continue to use methods that show past impairment until instructed otherwise by a court or other regulator.
The foregoing does not constitute and is not intended to be legal advice. It is general considerations that require further exploring. We would be delighted to provide specific legal advice tailored to your organization’s needs and practices.
If you have any questions regarding the impact of legal recreational cannabis use on your workplace or would like assistance reviewing workplace policies, please contact one of the members of our Labour & Employment group.