It’s official: as of October 17th 2018, Canada decriminalized the recreational use of cannabis. Canada is only the second country in the world to legalize cannabis nationwide, following Uruguay. Under the new laws, Canadians will be permitted to carry a small amount of cannabis, and in some provinces, consume it in public spaces such as parks and sidewalks. The nationwide legalization of cannabis follows through on a promise made by Prime Minister Justin Trudeau on the federal campaign trail back in 2015.
what’s legal?
Adults can possess up to 30 grams of cannabis in public. Larger quantities of cannabis may still be subject to prosecution. 18 is the mandatory minimum age set by the federal government, however individual provinces have the option to adopt a higher minimum age. Each provincial government created the laws for their province as well as the retail infrastructure to sell cannabis. Canadians must purchase cannabis from these provincial outlets or government-licensed retailers. Purchasing from the black market will remain against the law. Selling or distributing cannabis products to a minor will be illegal as well.
Canada’s impaired driving laws have also changed to account for driving under the influence of cannabis. Most provinces have adopted a zero-tolerance policy on driving under the influence of cannabis, however, some details are still being ironed out, such as the methods police will use to effectively measure cannabis intoxication. The provincial laws on what’s legal and what isn’t are somewhat of a patchwork, so make sure to refer to the legislation in your province to understand exactly what is permitted and what is not in your location.
cannabis in the workplace
With the legalization of cannabis, questions have been raised about how to handle employees who consume cannabis at or before work. If an employee shows up to work impaired, jeopardizing workplace safety or the quality of their work, should they be sent home? Can they be terminated? Can employers ban cannabis usage in employment contracts? Is drug testing allowed, even though cannabis is legal? At the moment there are more questions than answers, but here’s what we know so far.
HR concerns related to cannabis legalization
The most pressing concern is health and safety. There’s apprehension that employees who consume cannabis may not be able to perform their work safely, potentially creating legal liabilities for their employer. Some HR issues that could arise from employees’ cannabis consumption include:
- a drop in attendance or productivity
- disruptive or disorderly behaviour
- an increase in accidents or safety violations
- increased medical and insurance costs
- handling substance abuse issues at work
consuming cannabis at work
Just as it’s illegal to smoke cigarettes in workplaces and other indoor public spaces, there are restrictions on where consuming cannabis is permitted. Though consuming cannabis on work premises is forbidden, some questions remain. What about coffee breaks, lunch hour, or consuming cannabis at home before heading to work? Since each province was responsible for drafting its own legislation for cannabis legalization, the exact rules vary from province to province. Employers will need to set individual policies within the legal framework in their province. Employers should review their employee guidelines and clearly communicate their cannabis policy and disciplinary consequences of violations to all employees.
will random drug tests be legal?
Depending on the court and the province, random drug testing has been ruled both discriminatory and been upheld as legal and enforceable. These decisions were made before cannabis was officially legalized, however. From a legal perspective, there are conflicting individual and employers’ rights to be sorted out. Employers have the right to terminate employees who are ineffective in their job for any reason, as long as discrimination is not a factor. At the same time, individuals have the right to engage in whatever behaviour they want to outside of work, as long as it’s legal. Until legal precedents are set, it’s difficult to predict how these conflicts will shake out.
is there a threshold for acceptable cannabis consumption?
Drug tests can detect the presence of THC, the chemical which makes cannabis effective. However, unlike alcohol, there’s no consensus on the threshold for impairment. Since THC can stay in an individual’s system for several days, detecting THC during a drug test doesn’t necessarily mean that the individual is impaired. Terminating an employee because they tested positive for cannabis could be a violation of their rights if it’s unclear when the employee consumed the cannabis. There are also other factors to consider such as second-hand inhalation, the potency of different strains of cannabis, and individual metabolism.
could cannabis use be grounds for dismissal?
Consuming cannabis at or before work could be considered grounds for termination if it impacts job performance or safety. However, unless the employer can prove the employee’s cannabis use negatively impacted their output or workplace safety, it’s likely courts will side with the employee in a dispute, given that cannabis consumption is legal. Policies and employment contracts will likely be adopted on an employer-by-employer basis. Adopting a zero-tolerance policy could also be problematic as it ignores mandatory concessions such as medical necessity. Some employers may permit warnings before termination is considered. Others may add clauses in their employment contracts restricting how their employees can consume cannabis. If the person is suffering from substance dependence, human rights are also a consideration. It’s illegal to terminate an employee because of their disability, and according to Canadian law, addiction is a disability. The onus is on employers to make reasonable accommodations to support an employee with an addiction.
what about jobs where safety is a concern?
Jobs that require driving, operating heavy machinery, or where safety is impacted will almost certainly be an exception and have a much more stringent approach to cannabis usage. Consider jobs such as truck drivers or forklift operators where a clear head is a fundamental safety requirement; consuming alcohol while performing these jobs is strictly prohibited. Cannabis will be the same. Office jobs, where safety is not an immediate concern, on the other hand, fall into a grey area.
preparing for cannabis legalization
The vast majority of employees will be respectful and understand that just like you wouldn’t show up to work drunk, you shouldn’t show up to work while high. That said, HR teams should:
- watch for an uptick in the number of people who show up to work impaired, particularly in the period right after legalization hits and the novelty is at its peak.
- prepare and communicate clear policies regarding cannabis use as well as disciplinary procedures for violations.
- keep up with provincial updates. As the October 17th legalization date approaches, provincial laws will be rolled out, providing employers with a legal framework and resources to devise compliant policies.
If you need guidance on developing appropriate policies regarding cannabis use at work, the Human Resources Professionals Association (HRPA) has a thorough resource on cannabis legalization that you may find helpful. You can also reach out to our HR consulting team to get in touch with an HR expert who can guide your organization through devising an appropriate policy and updating your employee handbook.