Jacob Damstra and George Hamzos
Can I use recreational cannabis in the workplace?
By Jacob Damstra and George Hamzos
With the legalization of recreational cannabis set for October 17, 2018, many employers will be concerned with how this will impact their workplace. Although it will be legal for Canadians to consume cannabis in the privacy of their own home, the consumption of recreational cannabis in the workplace will continue to be illegal.
The consumption of recreational cannabis in the workplace is addressed explicitly in Ontario’s Cannabis Act, which is expected to take effect when the federal law legalizing cannabis comes into force on October 17, 2018. The Cannabis Act says that the consumption of recreational cannabis is prohibited within a workplace. A workplace is defined as any land, premises, location or thing at, upon, in or near which a worker works. Employers will still be entitled to discipline employees whose recreational use of cannabis has an adverse impact on their job performance. The use of cannabis for medical conditions will continue to be treated differently than recreational use.
The Cannabis Act also states that there will be a zero tolerance policy for young, novice and commercial drivers. These drivers will face sanctions if even trace amounts of cannabis are detected by an approved drug-screening device as prescribed by the Criminal Code of Canada.
Legalization of recreational cannabis does not undermine an employer’s ability to make rules or policies that prohibit workers from consuming recreational cannabis in the workplace or having consumption offsite impact their job performance. Employers should review their drug and alcohol policies following legalization to ensure that any necessary amendments are made so that the policies cover the use of recreational cannabis once it becomes legal. In addition to the prohibition on recreational cannabis in the workplace in the Cannabis Act, a well drafted drug and alcohol policy can assist employers to eliminate any potential loopholes and alleviate employee uncertainty.
There are important distinctions between recreational and medical cannabis that will have implications for employers and employees. We discuss rights and obligations related to medical cannabis in related articles in this series.
(It is important to note that the Ontario Government has announced that it intends to amend aspects of its new legislation and regulations relating to recreational cannabis. Stay up to date, or contact the authors for advice regarding the latest changes.)
At Lerners LLP, we have experience advising both employers and employees with respect to the use of cannabis in the workplace. We would be happy to advise you on those issues.