At this point, employers in Canada are acutely aware that cannabis or marijuana is about to become a legal substance. However, they might not yet have a full understanding of how this legalization will impact them, their employees or their workplace.

One area in particular that employers may require some additional insight into is the extent to which they can regulate cannabis.

As a general rule, the answer to this question is that employers are free to heavily regulate the use of cannabis as they see fit. Similar to alcohol, it is open to employers to prohibit the use of cannabis before, during and at work. Similarly, employers may even prohibit the simple possession of alcohol and cannabis at the workplace. Employers are also obviously entitled to require that their employees not be under the influence of alcohol or cannabis while at work. 

To take full advantage of their abilities to regulate cannabis, it is imperative that employers have strong alcohol and drug policies in place. Now is a good time for employers to review their policies to ensure that they contain these types of rules and expectations. Likewise, employers should also ensure that their employees are well aware of the policies and, as the case may be, any changes to the policies resulting from the legalization of cannabis.

There are a couple of substantial caveats to or limits on the general rule outlined above that employers are free to heavily regulate cannabis as they see fit. These caveats arise in relation to two broad types of situations. The first is the situation where the employee is addicted to cannabis. The second is the situation where the employee uses cannabis pursuant to the Access to Cannabis for Medical Purposes Regulation, SOR/2016-230 (the “ACMPR”). These situations will be briefly commented on below.

The Employee That is Addicted to Cannabis

An employer remains entitled to insist that an employee not use, possess, or be under the influence of cannabis while the employee is at work, even if the employee is addicted to cannabis. However, it is also important to recognize that addiction, whether to cannabis, alcohol or some other drug, is a disability and therefore a protected characteristic under human rights legislation.

What this means is that employers must be prepared to provide accommodation here. For example, an employer may be required to provide an employee that is addicted to cannabis with some time away from work so that the employee can seek treatment for their addiction. Similarly, an employer may be prevented from disciplining an employee that is addicted to cannabis for violating a rule or expectation contained in a policy. 

In relation to this type of situation, employers should: 

Ensure that their policy requires employees to disclose if they have, or suspect that they might have, an addiction or dependency;

Remember to, when an employee asserts that they have an addiction or dependency, request a medical to substantiate the addiction; and

Keep in mind that an employee that is addicted to cannabis has the same rights (and obligations) as an employee that is addicted to any other substance.

The Employee That is Authorized to Use Cannabis

Currently, under the ACMPR, physicians and nurse practitioners can authorize the use of cannabis for medical reasons. 

This legislation will continue to be in force even after cannabis is legalized (although it has been suggested that it may eventually be amended or repealed).

In this situation, employers must be prepared to provide accommodation in the same way that they provide accommodation to employees that use prescription medications or other treatments. However, there are a few things that employers should keep in mind here.

First, in some cases, the physician that authorized the use of cannabis may not be the employee’s regular or family physician. What this means is that the authorizing physician may not have a good awareness of the employee’s complete medical history or other relevant facts and circumstances. Second and related, the authorizing physician may not have engaged in a substantial discussion with the employee about the employee’s duties and responsibilities at work or the employee’s workplace. Third, in light of the fact that cannabis is very popular recreationally, the employee may not have been entirely forthcoming or genuine with the authorizing physician when explaining their need for cannabis or their intentions for future use.

With these things in mind, employers will want to: 

Request a copy of the employee’s authorization  to use cannabis;

Request other information from the authorizing physician relating to the employee’s use of cannabis; and,

Request, and push back for, other information from the authorizing physician relating to the employee’s duties, responsibilities and workplace, including the authorizing physician’s opinion as to whether the employee’s use of cannabis might affect safety and effectiveness. 

Again, it’s also important that employers have strong policies in place. The rules must be clearly established, but also, the employer must emphasize that its culture is intolerant towards the unauthorized and unnecessary use of cannabis, as well as alcohol and other drugs.

Field Law’s Cannabis Industry Group will continue to countdown to the implementation of the legislation on July 1, 2018. Stay tuned for more information on labour and employment, occupational health and safety, intellectual property and business-related issues that may arise following the legalization and regulation of cannabis.