Effective October 17, 2018, recreational use of cannabis is legal across Canada. While the Cannabis Act offers clear parameters for individual possession and purchasing, it raises more questions than it answers for employers. How will the law impact your workforce on a daily basis? What if employees come to work impaired? Will businesses now be able to implement random drug testing?

Unfortunately, there aren’t a lot of answers yet. One thing businesses can do is to revisit their drug policies and procedures to ensure compliance with the new law and proactively consider all the ways in which recreational cannabis use by employees could possibly affect your workplace – a task many Canadian businesses haven’t yet done. According to the Human Resources Professionals Association, as many as 46 percent of Canadian businesses don’t believe that their existing drug and alcohol policy adequately covers potential workplace issues that could arise as a result of the Cannabis Act.

Now is a good time to review and update policies and procedures with both your HR department and legal counsel. Consider the following best practices when assessing your drug policy:

  1. Understand the language of the law. The law allows individuals to possess up to 30 grams of cannabis in public and share the same amount with other adults. Employers may want to clearly define public spaces as it pertains to the work environment to clarify where employees can “share.”
  2. Know what the law doesn’t say. Canadian law requires employers to accommodate employee disabilities until the point that it causes “undue hardship.” The question is: Does this include employee use of cannabis? When it comes to medical marijuana use, the answer is yes. Employers are required to accommodate individuals who use cannabis for medical reasons. And yet, safety-sensitive positions should not be compromised. Instead, safety jobs should be identified and suitable policies and job descriptions should be developed to protect workers and workplaces alike. Additionally, Canada’s smoke-free laws still apply to places of employment. Employers may want to update their smoke-free facility policy to reflect cannabis consumption.
  3. Define the undefined. Unlike alcohol, there’s no consensus on safe limits for consuming cannabis, as the drug affects individuals differently. Define “impairment” in your business’ drug and alcohol policy and provide details on how this applies to medical cannabis as well. For businesses who already have - or want to institute - a zero-tolerance policy, it may be necessary to establish sobriety as an occupational requirement. Such policies may be more acceptable in safety-sensitive workplaces.
  4. Revisit workplace drug testing regularly. Marijuana is currently the most common substance discovered in workplace drug testing in Canada,1  and its use is expected to rise after the law takes effect. However, human rights tribunals across the country call workplace drug tests an “invasion of privacy” and therefore, individuals are currently only tested after an accident or when reasonable suspicion is present. After the law takes effect, updates and case law will likely change the state of workplace testing. Similarly, rapid advancements in testing technology will demand policy updates more regularly. Stay on top of workplace testing best practices and acceptable legal applications.

Contact your HUB Risk Services team for assistance in developing or revising policies, procedures and programs that may be impacted by the Cannabis Act.

[1] https://www.hrpa.ca/Documents/Public/HRPA-Clearing-The-Haze.pdf