Effective October 17, 2018, possession of small amounts of cannabis for personal use will no longer be illegal in Canada. However, just because the Criminal Code is changing does not mean that it will be legal to use marijuana or cannabis products anywhere or at any time. In particular, both the federal and provincial government recognize that the cognitive and physical impairments resulting from cannabis consumption pose significant workplace health and safety hazards. As a result, it is important for employees and employers to know what the rules will be going forward.
Cannabis in the workplace
The Ontario government is currently reviewing the Smoke-Free Ontario Act, 2017 and Cannabis Act, 2017 to determine what restrictions will apply to recreational cannabis use in the workplace. In particular, smoking marijuana in workplaces will not be permitted any more than the smoking of cigarettes. Further, all signs indicate that employers will be able to – and in fact will be expected to – limit or restrict all use of cannabis in the workplace unless it is required to accommodate an employee’s disability.
Duty to ensure the safety of workers
Employers must also take every reasonable precaution to minimize the risks caused by workers who are impaired, or potentially impaired, at work by cannabis, alcohol or any other substance. Workers should be adequately trained about: (i) any workplace drug policy, (ii) the workplace health and safety risks associated with impairment, and (iii) reporting any cases of possible impairment. Employers must ensure that managers and supervisors are adequately trained to recognize and address workplace impairment.
Workplace drug policies
Employers should take this opportunity to either update their company policies, or to create them if there are none already in place. The objective of the policy should be to educate workers, including supervisors and managers, and to clearly outline how the use of cannabis (or any other legal but impairing drug) will be addressed and dealt with.
Workplace drug testing
Employers are sometimes allowed to implement drug and alcohol testing for workers in safety-sensitive positions in specific situations, including after a significant accident or “near miss”, and where the employee’s appearance or behaviour suggests that he/she is impaired at work. The law generally does not permit drug and alcohol testing on workers in positions that are not safety-sensitive, though some exceptions may apply.
Human rights considerations
An employee’s reported use of cannabis may trigger an employer’s duty to accommodate under Ontario’s Human Rights Code where an employee has an addiction to cannabis or where a physician has prescribed the use of cannabis for therapeutic or medicinal purposes. Purely recreational use of cannabis would not trigger an employer’s duty to accommodate.
For more information about your obligations regarding cannabis in the workplace, please contact James Jennings in Toronto, Jonathan Dye in Hamilton, or any one of our other lawyers at Filion Wakely Thorup Angeletti LLP – www.filion.on.ca