Cannabis and Employment - LawNow Magazine

Cannabis and Employment

Employment Law ColumnIntroduction

 While medical scientists are busy deciding the human health impacts of regular recreational cannabis use, and governments are still working out how cannabis will be cultivated, sold and taxed, and law enforcement officials consider how cannabis use will affect driving and how road safety will be maintained, it now falls to every employer in Canada to reckon with how the decriminalization of recreational cannabis will impact the workplace.

A recent Conference Board of Canada report revealed that more than half (52%) of employers are concerned about this when the rules change on October 17, 2018.

Impact is Impossible to Predict

The reigning wisdom seems to be that no one can accurately know at this point how cannabis will change the workplace.  The law will change and with it expectations and behaviours, and perhaps risks.  But cannabis is not the first problematic legal substance to threaten the worksite.  Tobacco smoking, drugs and alcohol have all called for good management and cannabis will be added to that list.

Concerns

Unregulated cannabis consumption at work will give rise to, or magnify, several concerns.  Principal among these is health and safety at work, for the cannabis user and all others located on the worksite.  There may be an increase of mental and physical impairment, of time lost due to impairment and consumption on the job, and the need for more frequent testing of employees.  If cannabis is addictive in any way, more treatment and reasonable accommodation might be in order.  The interests of non-consuming co-workers must also be taken into account.

Employer Prerogative

Except perhaps in the case of medical cannabis, where restrictions may still apply, no one has a constitutional right to consume cannabis on company property and on company time.  It may be soon a legal substance, but that does not render it a legal right for the employee at work or a legal obligation for the employer.

Testing of any kind for cannabis in one’s body constitutes an intrusion into an employee’s privacy.  It will only be legally permitted where a clear case has been established upon grounds of critical safety sensitivity of the work.

Employers have the right – indeed the duty – to regulate the use of cannabis and cannabis-affected employees in their workplaces.  This is no different than what they already do with respect to alcohol, weapons or tobacco.  While those are all things, cannabis can also be regulated at work much like behaviours are regulated.  Employers already regulate many behaviours of employees.  These include acceptable use of language, social media and employer property, and zero tolerance of harassment and violence.

Some observers have noted that the only real difference – and even it is not that significant – between alcohol and cannabis is the detection and measurement of impairment.  Employers must be able to intervene in occasions of impairment and must discern when it exists and how it manifests from each stimulant.

Despite decades of illicit cannabis use and a shorter but still significant period of medical cannabis use, not every effect is well understood.  It would be prudent, therefore, for employers – who enjoy a wide prerogative to prescribe rules for the workplace – to chart a conservative course.

Cannabis Policy

The legal instrument of the employer’s regulation is the Employment Policy on Cannabis.  One should be carefully drafted and placed before existing employees for their acceptance going forward.  Future employees should agree to submit to the policy from the first day.  Communication and buy-in of the Policy by all employees and managers is essential.  It is a good idea to renew this mutual commitment across the board to this Policy, along with other policies, each year.

The written Policy should contain all the workplace rules on cannabis.  For example, in safety-sensitive operations, a ‘no consumption’ rule could be imposed, backed up with random testing.  So as not to cross-contaminate abstainers, if consumption on the property is permitted, the employer might require that all consumption take place in certain designated spaces and times.

The legal instrument of the employer’s regulation is the Employment Policy on Cannabis. A threshold question is whether the employer would allow cannabis use in the workplace at all.  Or at some functions, but not at while engaged in regular work?  Again, one draws the analogy to alcohol.  One would not abide workers drinking high balls while working, but moderate consumption during a lunch, late afternoon meeting or social event might still be reasonable.

The medical use of cannabis must be treated separately because this engages a human right and the employer’s duty to accommodate.  Even then, the employer has considerable discretion and control over how the medical cannabis is administered.

The Policy should emphasize that employee productivity or behaviour should not be impaired at any time on the job by cannabis.  The employee should be warned, and must accept, that any violation of the Cannabis Policy is subject to disciplinary action up to, and including, summary dismissal.

Offsite Cannabis Consumption

Except perhaps in the case of medical cannabis, where restrictions may still apply, no one has a constitutional right to consume cannabis on company property and on company time.  The same workplace rules that are used for alcohol can be adapted and applied to cannabis.  Offsite consumption may have lingering onsite effects and this possibility should be addressed in the Policy.  Employers might wish to confer with medical experts and law enforcement officials on how users are affected, if at all, well after cannabis use.

Employers are largely in control over cannabis in the workplace, just as they are in control of other legal but problematic substances and potentially troubling behaviours.  However, they must be aware of some employees’ rights to medical cannabis and every employee’s rights to a measure of privacy in the workplace.

Testing of any kind for cannabis in one’s body constitutes an intrusion into an employee’s privacy.  It will only be legally permitted where a clear case has been established upon grounds of critical safety sensitivity of the work.

Authors:

Peter Bowal
Peter Bowal
Peter Bowal is a Professor of Law at the Haskayne School of Business, University of Calgary in Calgary, Alberta.
 


A Publication of CPLEA

Font Resize
Contrast