November 2 2018
Cannabis in the workplace: is it legal or not?
The new federal and Quebec legislation on cannabis now allows for legal use of cannabis.
Employers often ask us what the effects this new reality has for the workplace. How do you monitor use in the workplace? How to intervene when an employee has a problem? Can we allow use during social activities?
Use in the workplace
When it comes to use in the workplace in Quebec, the legislator enacted the Act to constitute the Quebec Corporation of Cannabis as well as to enact the Cannabis Regulation Act and to amend various highway safety related provisions (hereinafter the "Act") namely to regulate the use of cannabis. The Act sets-out specific provisions that prohibit smoking or vaping cannabis essentially in all public places, both indoors and outdoors, including in the workplace (unless the workplace is in a private residence).
However, section 21 of the Act allows the employer to regulate workplace use or prohibit all forms of cannabis at work (so not just smoked or vaped - think cannabis edibles).
The Occupational Health and Safety Act also includes two new sections, 49.1 and 51.2, which outline the responsibilities of employers and employees. In particular, the employer must ensure that an employee does not pose a risk to his health and safety or that of others in his work environment, particularly because of impairment due to cannabis use.
It is also worth noting that the new legislation provides specific rules for jobs related to the cannabis industry, such as production and sales facilities for products.
Effects at work
The Act does not change the state of the law as to the effects of cannabis on an employee at work. Cannabis should be treated the same way as other psychotropic products.
Employees have an obligation to provide a safe and healthy work environment.
To this end, they should:
• Update their internal policies to include cannabis. At this time, they can establish a zero tolerance policy regarding the use of any form of cannabis in the workplace and the presence of employees who are impaired in the workplace. This policy may provide for exceptions, such as the company's social activities.
• Inform employees of their policies and the effects of cannabis so that employees are aware of the employer's expectations in this regard.
• Train managers to apply said policies.
• Allow employees who have a substance abuse problem to report it in order to obtain the required assistance.
Screening in the workplace can be problematic. In Canada, random or systematic testing is not allowed. A screening test may be requested where there are reasonable grounds for doing so. The Supreme Court of Canada has identified three situations where such reasonable grounds exist: a belief that the employee is impaired, following a serious accident in the workplace or upon an employee’s return to work following substance-abuse leave. The signs of the effects of cannabis on an employee in office can be detected by red eyes, slurred speech, and poor coordination. However, some of these signs may also result from excessive work or lack of sleep. It is therefore important that managers receive adequate training to recognize the problem and how to respond appropriately in order to ensure the health and safety in the work environment.
Duty to accommodation
It is also worth remembering that an employer cannot fire an employee who has an addiction problem as it is considered a disability. The employer can suspend the employee while he is recovering and offer him an assistance program to deal with such addiction.
The legislator therefore gives employers the tools they need to exercise their right to manage the use of cannabis and its effects on the work environment. Nevertheless, employers must put in place clear policies that will be communicated to employees and properly implemented by their managers. As for the future, the courts will have the opportunity to delineate this new social reality in the coming months and years.