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Employment & Labour

Legal cannabis demands workplace policy updates

Alcohol-use policies will provide a good template for employers who are puzzling over how to treat cannabis use in the workplace once the drug is legalized, Toronto employment lawyer Matthew Wise tells

The federal government recently passed Bill C-45, the Cannabis Act, to govern the use and sale of marijuana for recreational use, while its partner Bill C-46 overhauls the country’s impaired driving laws.

And while it may be months before the laws come into force, Wise, a partner with Macdonald Sager Manis LLP, says employers should turn their minds to workplace policies on the drug if they haven’t already.

“In the coming months, there’s going to be a huge push to educate employers on these issues,” he says. “There has been a great deal of discussion over how recreational cannabis should be dealt with and I suspect it will be treated much like alcohol.

“Employers have a right to say you can’t drink on the job, and I think they have a right to say you can’t smoke marijuana on the job,” Wise adds.

He says that employers have a particular interest in ensuring employees in safety-sensitive positions, such as operators of heavy machinery, are not under the influence of cannabis while at work.

However, Wise says assessment of cannabis impairment remains a problem for employers and law enforcement due to the unique way its ingredients break down in the body.  

Bill C-46 creates three new offences for drivers with certain levels of particular drugs in their system within two hours of driving and allows police to demand saliva samples from drivers suspected of operating a vehicle under the influence of drugs. But some have raised concerns about the reliability of detection technology for THC, the active ingredient in marijuana.

Metabolites of the drug have been shown to linger in blood samples long after use at levels that differ on an individual basis. In contrast, breathalyzers offer a very accurate reflection of the level of alcohol in a person’s bloodstream and how it is likely to affect them, Wise says.

“Assessing impairment could prove to be the most difficult part of this to navigate in practice,” he says. “There are also several ways to use marijuana or cannabis as treatments that don’t cause impairment at all."

Another challenge for employers arises in the context of medical marijuana prescribed legally to employees, says Wise, who explains that Ontario’s Human Rights Code requires employers to accommodate employees using the drug to the point of undue hardship.

“As the medical community comes to grips with these treatments, I can foresee instances where prescriptions can be validly made without impairing a person’s ability to do their job, and without necessarily triggering the need for accommodation,” he says. “The tricky thing is recognizing when accommodation is necessary, and how to go about doing it.”

He says the duty to accommodate may also kick in when an employee’s cannabis use appears to impair their performance at work.

“In the past, if an employer saw an employee acting erratically or unprofessionally, they may have imposed discipline or terminated the individual. But if the employer dos that in an instance where the person is drug-dependent or relying upon prescribed medication, it could leave them exposed to a human rights complaint,” Wise says.

He says the nature of a person’s job will factor into any accommodation, but notes that employers are entitled to respond to such requests according to their own needs, rather than an employee’s preferences.

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