Publication

10 Burning Employer FAQs About Cannabis @ Work

Published:

December 13, 2018

Author(s):

The Labour & Employment Law Team, at McInnes Cooper

This publication has been updated as of October 15, 2020.

Canada became only the second country in the world to legalize cannabis (or marijuana) for non-medical (a.k.a. “recreational”) use on October 17, 2018, about 20 years after it legalized cannabis for medical use. Initially, only recreational dried cannabis and plants were legalized; on October 17, 2019, cannabis edibles, extracts and topicals for recreational use were also legalized.

The legalization of cannabis for both medical and non-medical use has posed significant management challenges for employers. Here are the answers to 10 questions employers frequently ask us about managing cannabis in the workplace.

1. Has the legalization of cannabis for non-medical (or “recreational”) use changed cannabis use in Canada?

Yes. To monitor the impact of legalization, Statistics Canada implemented the National Cannabis Survey (NCS) to measure various cannabis use behaviours. The data gathered offers useful insights into cannabis use in Canada.

Increased use. In February 2020, Statistics Canada published a report titled “What has changed since cannabis was legalized?”. It concluded that use by Canadians aged 15 or older increased by 1.8% from 2018 to 2019, from 14.9% (4.5 million people) to 16.8% (more than 5.1 million people). The increase is primarily in those aged 25 and up.

Worker use. The February 2020 report didn’t address this, but the Quarter 1, 2019 NCS results indicated that about 514,000 workers (about 13% of Canadian workers who were current cannabis users) already used cannabis before or while at work. With the increased overall rate of cannabis usage, it seems reasonable to expect the usage rate of Canadian workers reflects that increase.

2. Is ingesting cannabis different from smoking (or vaping) it?

Yes. Both are cannabis, both are now legal, and both have impairing effects of concern to employers, but they are different.

Delayed onset. It typically takes longer to feel the intoxicating effects from ingesting cannabis than from smoking it, up to two hours according to the Canadian Centre on Substance Use and Addiction Centre (CCSA), and to peak, at about four hours. This can make consumers think it didn’t work and take more, heightening the risk of overconsumption.

Longer lasting. The high from ingesting edible cannabis also typically lasts longer, up to 12 hours according to the CCSA.

High intensity. At least some people get a more intense high from ingesting edible cannabis, according to the CCSA.

Edible cannabis also poses different management challenges for employers because it’s more difficult to detect: it can look like “normal” food (despite labelling requirements, which only apply to purchased products and original packaging); there’s no distinct odor; and there’s no associated “paraphernalia”.

3. What’s “residual impairment” mean and how long does it last?

“Residual impairment” in the context of cannabis use refers to the impairing effects that last even after a user consumes the cannabis and the “high” has peaked. The residual impairing effects of cannabis, whether ingested or smoked (or vaped) can last more than 24 hours. This is a significant concern to employers, particularly those that employ users in safety-sensitive positions.

4. Do employers have to treat recreational cannabis and alcohol the same, given both are legal?

No. Both are legal and both cause impairment but cannabis and alcohol aren’t the same. But regardless, employers have the authority to set the workplace rules (in compliance with applicable laws) and can prohibit the recreational use of cannabis in the same way they can prohibit the use of alcohol on their premises during working hours, or even otherwise as is appropriate depending on the position and the work environment (for example, while “on call”). And employers can allow a limited amount of alcohol consumption at off-duty work-related events – and prohibit cannabis use at the same event.

5. Does a “zero tolerance” policy mean zero use or zero impairment?

Neither. “Zero tolerance” refers to a sanction for the violation of a workplace rule (a.k.a. policy): it means there are no second chances for an employee’s violation of that workplace rule. Employers’ concern that zero-tolerance drug or alcohol policies are discriminatory on the basis of disability was set to rest for safety-sensitive positions by the Supreme Court of Canada’s decision in Stewart v. Elk Valley Coal Corporation confirmed that a zero-tolerance drug and alcohol policy isn’t discriminatory.

In the Elk Valley Coal case, a mine operator’s drug and alcohol policy allowed an employee to disclose any alcohol or drug-related issues before a workplace incident occurred. It stated the employer would offer treatment to employees who self-disclosed – but could dismiss those who didn’t disclose and were subsequently involved in an incident and tested positive for alcohol or drugs. An employee in a safety-sensitive position was involved in a workplace accident and tested positive for cocaine. He then claimed he had a drug dependency. The employer dismissed him for violating the policy. The employee filed a human rights complaint alleging discrimination based on disability. The Supreme Court of Canada ultimately confirmed there was no discrimination: the employer terminated his employment for breach of the policy’s disclosure provisions, not the disability, and further it had accommodated the employee to the point of undue hardship in light of its goal to provide a safe work environment where impairment could lead to “devastating consequences”.

6. Must an employer policy really differentiate between “safety-sensitive” and “non-safety sensitive” positions in a drug (or alcohol) policy if it clearly states zero-tolerance for all positions?

Yes. All employees are expected to report to work and remain fit for duty and to perform their job in a safe manner, unimpaired by substances of any kind. But the risks of failure to do so by an employee in a safety-sensitive position typically exceeds those by an employee in a non-safety sensitive position. This additional risk can justify greater employer intrusion into employee privacy and autonomy. Employees generally have a right to consume cannabis in their off-time and to keep this private – unless or until it affects the employer’s legitimate interests, including the obligation to provide a safe workplace. Employees in safety sensitive positions can therefore be subject to drug and alcohol testing (pursuant to a well-drafted policy) in certain circumstances; those in non-safety sensitive positions generally can’t. Whether a position is “safety-sensitive” is decided on a case-by-case basis but practically, designation of a position as safety-sensitive generally occurs in the context of an industrial workplace or industry (such as the oil and gas industry) or involving workers who drive (such as public transit drivers).

7. Can an employer’s policy require all employees to disclose use of medical marijuana and/or a drug dependency, or only when the employee is in (or is seeking) a safety-sensitive position?

The Elk Valley Coal case puts employers on firm footing in requiring employees in (or seeking) a safety-sensitive positions to proactively disclose their use of any substance that could affect their fitness for duty, and in considering disciplinary action for an employee who fails to comply with such a disclosure policy. But an employer could have difficultly defending a policy requiring this disclosure from workers in non-safety-sensitive positions. However, a substance dependency can cause other workplace issues, such as attendance problems so it’s wise to draft a policy that encourages all employees to proactively seek treatment for substance dependency.

8. Does the “duty to accommodate” under human rights law extend to cannabis?

Yes, but … Human rights laws impose a legal duty on employers to accommodate a disability: to arrange an employee’s workplace or duties to enable the employee to do their work, if the employer can do so without undue hardship. Depending on the circumstances, this extends to accommodation of both substance dependency and use of medically prescribed or authorized drugs, including marijuana. But just as there’s no duty to accommodate recreational alcohol use that falls short of alcohol dependence, there’s no duty to accommodate recreational cannabis use that falls short of drug dependence. Furthermore, accommodation of medical cannabis use could amount to undue hardship, depending on the circumstances.

9. What drug testing methods and impairment limits can we put in a policy to determine when an employee isn’t safe to work due to cannabis impairment?

Unlike alcohol, there’s still no established metric or testing method to determine present impairment from cannabis that can distinguish recent from chronic or earlier use. There are also very strict constraints on the circumstances in which an employer can conduct any impairment testing, whether drug or alcohol. However, in safety-sensitive workplaces, employers can still develop a policy that establishes “cut-off” levels for cannabis and testing methodologies that are legally accepted. It’s important, however, that the policy be carefully drafted and properly implemented. Any test the employer then conducts forms part of the overall evidence to demonstrate the performance deficits of an employee working in a safety sensitive position.

10. What steps can employers take to manage the workplace impact of cannabis?

Here are five steps employers can take to manage the workplace impact of marijuana.

Implement policies or review current ones. If you don’t already have workplace policies dealing with cannabis, implement them; if you already have them in place, review and revise them as necessary. Check that the appropriate policies are in place and are properly implemented, and in addition:

Ensure the policy adequately covers and prohibits all forms of cannabis, including edibles, extracts and topicals as well as smoking and vaping.

Because there’s no test for present impairment from cannabis, focus on setting a Fitness for Work standard rather than an “impairment” standard.

Remember there’s more scope for substance policies when dealing with a safety-sensitive position, such as pro-active disclosure of substance issues and zero tolerance.

(Re)Train managers & supervisors on “impairment indicators”. Train managers and supervisors – and regularly refresh training – to watch for and recognize indicators of impairment, including the following, and to take appropriate action when they are present:

First-hand observation of the employee’s conduct or physical appearance, for example, bloodshot eyes, imbalance, or staggering. This is particularly important because cannabis edibles lack a smell or related paraphernalia.

The smell associated with drugs on or around the employee.

Drugs and/or related paraphernalia around the employee or the area in which they work.

Remind employees of expectations. Regularly remind employees of the employer’s expectations of them – foremost being that they report to work fit for duty and unimpaired by substances of any kind.

Employer & employee education. Ensure all managers and supervisors, as well as all employees, are educated on the impacts of cannabis in all its forms, of the differences between them, and of the risk of residual impairment that could continue at work – and that can have consequences.

Monitor the science & update policies. Cannabis – and the impairment testing methodologies – is a rapidly evolving area. There’s still medical and scientific uncertainty about impairment from cannabis generally, residual impairment (how long cannabis impairment lasts after consumption) specifically, and how to accurately measure present impairment. Closely monitor the science and the criminal law standards for cannabis impairment and implement more frequent policy and procedure reviews and updates and training.

Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Law Team @ McInnes Cooper to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2018. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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