How will companies deal with employees who consume cannabis once recreational marijuana is legalized in Canada next summer? One lawyer says employers should prepare themselves by updating their policies around substance use and human rights.
Cannabis Legalization Changes the Context for Impairment
Mario Torres, a labour and employment lawyer with Brazeau Seller Law based in Ottawa, says that the legal principals governing the workplace won’t change. If an employee is impaired behind the wheel of a company car and gets into an accident, the employer will still likely have a vicarious liability issue, regardless of the substance that was used.
What’s changing is the context, and that has the potential to impact the workplace.
“We’re going to see increased costs for training management and staff when it comes to cannabis use and their rights, duties and expectations,” says Torres. Since the number of marijuana users is expected to spike once it becomes legal, so will the number of people who abuse it.
He also noted that any liability related to impairment prior to cannabis legalization will stay the same.
Dealing With Marijuana Misuse vs. Medicinal Use
Torres says employers should be prepared to deal with any cannabis misuse as a disability. “It could be actual dependency or a perceived dependency that will trigger the employee’s rights under various human rights statutes across provinces and federally,” he says.
There will likely be an increase in wrongful dismissal claims against employers who suspect their employees may be consuming cannabis at work. If an employer fires a member of staff who they think is high at work, that employee will have the right to challenge the move in civil courts, under wrongful dismissals, or at a human rights tribunal.
When it comes to medicinal use, the employer has a duty to accommodate the employee’s use of the drug as medicine but also has the right to insist that their staff isn’t impaired when working. Torres predicts these issues will be dealt with on a case-by-case basis, especially considering some forms of cannabis, like cannabidiol (CBD) oil, don’t cause a psychoactive reaction.
Employers: Update Your Marijuana Policies ASAP
Making things more complicated is the definition of impairment. This is a grey area since there currently isn’t a legal, accepted test to determine cannabis consumption, like a device to test blood alcohol level. Until a standard, non-invasive test is available, the best thing an employer can do is train their staff and management, and create a clear policy on cannabis use.
Torres stresses that it’s important for employers to update their guidelines concerning cannabis use, both recreationally and medicinally, well before it becomes legal.
“An employer can update their policies, can change terms within policies and legalization is a ripe opportunity to do that,” says Torres. “You need to ensure cannabis use is covered in existing substance use policy, human rights accommodation policy, and that it’s communicated to employees. Cannabis-specific training should be considered if the employer has the resources to do so.”
Photo credit: Paul Bence