Marijuana has been legal for medical use since 1999. As you undoubtedly know, the Trudeau government has tabled legislation that would expand legal use to the recreational sphere. Employers need to be prepared for how the potential legalization of recreational marijuana will impact the workplace.
Background on the Bill
Here’s a little background on the Liberal Bill – Bill C-45, the Cannabis Act, was introduced by Minister of Justice Jody Wilson-Raybould (she’s from Vancouver) in April. In June it passed second reading and was referred to the Standing Committee on Health. The Committee is expected to begin hearings on the Bill in September. Anyone wishing to participate in the process can make a submission to the Committee.
The Bill would allow for legal possession of up to 30 grams of cannabis by those 18 and older. Individuals will also be allowed to grow up to four cannabis plants in their homes, though these must be under one metre tall. Because sale and distribution of marijuana will now be regulated, anything to do with illegal marijuana will remain illegal.
Impact in the Workplace
So what will this all mean for the workplace? Many employers will already be familiar with the need to accommodate the use of medical marijuana in the workplace, where an employee uses it to treat an illness or injury falling under the definition of disability in the Human Rights Code.
An addiction to marijuana can also fall under the definition of disability and require accommodation. This does not mean that employers must permit employees to be impaired by marijuana while at work – accommodation must always be balanced with safety, and is required only up to the point of undue hardship.
Practically speaking, employers need to be prepared to handle the presence of marijuana in the workplace. Employers should make themselves aware of the signs of marijuana impairment. Employees have never had the right to work while impaired, and the Cannabis Act won’t change that. Workplace policies may need to be amended. For example if a workplace policy prohibits employees from drinking alcohol on the job or at lunch, it will also need to prohibit them from using cannabis during work hours or on breaks. On the flip side, policies that prohibit recreational marijuana use, due to its illegality, will need to be updated.
Monitoring Marijuana in the Workplace
Marijuana impairment can be difficult to detect, especially with the rise in popularity of odourless edibles.
Along with Bill C-45 came Bill C-46, which would change impaired driving laws in preparation for the legalization of marijuana. Testing for impairment by marijuana is tricky, as drugs metabolize differently from alcohol, and can remain detectable in the body long after the effects have passed. This is one of the reasons why the caselaw tends to treat the detection of drug and alcohol impairment differently. Bill C-46 would give peace officers the power to demand a bodily sample from drivers suspected of impairment.
I will address the nexus between recent caselaw on random drug testing in the workplace and the legalization of marijuana in a later post, as it’s sure to be a hot topic post July 1, 2018, the date Trudeau would like the new legislation to be in place.