October 17, 2018

Bracing For Change: Legalization of Marijuana Effective Today

Employers across the country are bracing themselves for today’s legalization of recreational cannabis.  Is your workplace ready?  Have your policies been updated to reflect the changing legal landscape?  Employers should consider the following with respect to a review of already existing policies and workplace drugs and alcohol:

• Update policy references to marijuana and cannabis and the definition of “illegal drugs”;
• Ensure policies clearly articulate and reinforce the expectation that employees be fit for work, ensure workers and supervisors are appropriately trained, and ensure there is an understanding of the consequences for failing to comply with the policy;
• Train supervisors and workers to identify signs of impairment in their co-workers and give them the tools to report concerns of risk to a safe workplace;
• Ensure policies provide for the accommodation of employees who may be suffering from an addiction or dependency; and
• Incorporate accommodation and disclosure provisions that mirror language that the Supreme Court of Canada found permissible in Elk Valley Coal.

A reminder of the following:

• The legalization of recreational cannabis does not change the law across Canada that employers may legitimately require employees to come to work fit for work and not be impaired by drugs or alcohol;
• Employers have obligations under occupational health and safety legislation to ensure employees are working safely;
• The legalization of recreational cannabis does not change an employer’s obligation to accommodate employees to the point of undue hardship arising out of a disability;
• Do not get distracted by the source of the impairment, but instead focus on the issue of impairment and its implications for the workplace; and
• Do not assume that all workers are aware of the dangers of driving or operating equipment while impaired, or how being impaired can negatively affect their ability to do their job safely. Arbitrators in recent decisions have accepted medical evidence that cannabis can cause impairment which can last up to 24 hours after use.

In a safety-sensitive workplace, an impaired worker’s actions can result in devastating consequences.  This was the case in a fatal 2009 accident that occurred on Christmas Eve involving Metron Construction.  According to toxicology reports, three of the four deceased workers, including the site supervisor, “had marijuana in their system at a level consistent with having recently ingested the drug” at the time of the incident.
For a primer on cannabis in the workplace, view our complimentary webinar Marijuana & Workplace Safety – What’s an Employer to Do? Medical and Legal Issues with Marijuana Legalization.  This session reviews the science on cannabis, occupational health and safety, and human rights considerations.
We also refer you to our suite of recent publications on cannabis legislation and decisions:

• Recreational Cannabis Legalized as of October 17, 2018 (June 22, 2018)
• Changes to the Smoke-Free Ontario Act (June 28, 2018)
• Inability to Measure Current Impairment Means Risk Can’t be Managed: Employer’s Refusal to Hire Employee with Medical Marijuana Prescription on the Basis of Undue Hardship Upheld (May 18 2018)
• The Legalization of Marijuana and the Workplace (Employers’ Advisor, June 2018)
• The Canadian Centre on Substance Use and Addiction Releases Study on Workplace Substance Use Policies (April 25, 2018)
• More Clarity on Post-Incident Drug and Alcohol Testing from the Alberta Court of Queen’s Bench (April 27, 2018)
• Medical Marijuana Not Required To Be Covered by Health Plan: Nova Scotia Court of Appeal Overturns Human Rights Board of Inquiry Decision Finding that Denial of Coverage for Medical Marijuana was Discriminatory (April 13, 2018)
• Check Your Pockets: Newfoundland Court of Appeal Upholds Termination for Inadvertent Possession of Marijuana at Work (February 28, 2018)

If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.