On June 7, 2018, the Canadian Senate voted in favour of the Cannabis Act (Bill C-45), with some amendments.
Bill C-45 will still need to be sent back to the House of Commons and receive Royal Assent, but cannabis legalization has reached another significant milestone.
Legalization will be a near instant paradigm shift in Canadian society, with a particular impact being felt by employers. While there is a time and place for lighthearted puns regarding this paradigm shift, there are also very serious obligations that employers must meet in the post-legalization workplace.
Employee impairment by alcohol, marijuana and other substances is a serious safety concern that can lead to avoidable accidents and injuries as well as significant liability. Employers and others may face occupational health and safety prosecutions, workers’ compensation claims and other potential liabilities where they fail to take steps to ensure employees are fit for work. This area is complicated further for employers by addictions disability issues and the duty to accommodate under human rights law.
One of the most significant tools for employers to discharge their obligations and mitigate risk is a drug and alcohol policy. Workplace training on the drug and alcohol policy is as important as the policy itself.
A well drafted drug and alcohol policy will outline what is prohibited in the workplace, the consequences of a violation, how addictions disabilities will be accommodated and the who, what, where, why, when and how of drug and alcohol testing.
Under the Canadian model of drug and alcohol testing, an employer’s right to test for drug and alcohol use is currently arguably limited to safety-sensitive positions where:
- the test occurs pre-employment;
- there is reasonable cause to believe the employee is in breach of the policy;
- there is a near miss involving the employee; or
- as part of a return to work following a drug and alcohol policy breach or as part of an accommodation for an addictions disability.
In some very limited circumstances, an employer may be able to implement random drug and alcohol testing for safety-sensitive positions.
Even employers with employees that are not safety-sensitive should have a drug and alcohol policy outlining the requirements to be fit for work.
Many drug and alcohol policies will need to be updated to account for the pending legalization of marijuana. Employers should seek legal advice to review or implement effective drug and alcohol policies (and related training) to be prepared for the post-legalization workplace.