Could the legal possession of marijuana in Canada result in your employees being barred from entering the U.S.?

The rate of registered medical marijuana users continues to skyrocket, with Health Canada reporting that in June 2017 there were 201,398 registered users. Reports say that the number of projected users of medical marijuana in Canada could grow to more than 450,000 in the next decade.

In addition to medical use of marijuana, Canada is well along the path to legalizing the use of and sale of recreational marijuana. Understandably, many employers have concerns about safety and how legalizing marijuana will impact safety issues at the workplace. What has not received as much attention is the potential impact that legalizing marijuana could have on a marijuana consumer’s ability to travel into the Unites States.

Any business that relies on employees being legally eligible to travel into the United States needs to sit up and take notice before a key employee is turned back at the border.

Currently in Canada, medical users of marijuana are subject to the Access to Cannabis for Medical Purposes Regulations. These regulations provide a framework for commercial production by licensed producers as well as setting out provisions for individuals to produce a limited amount of marijuana for their own medical purposes or to designate someone to produce it for them.

Whether medical users purchase or grow the marijuana pursuant to a valid prescription, their possession limit is the lesser of a 30-day supply or 150 grams of dried marijuana (or the equivalent amount if in another form). It’s also important to note that individuals growing marijuana can do so both for their own use and for one additional individual.

In addition to medical use of marijuana, Canada is preparing to bring in The Cannabis Act in July 2018 which will allow for recreational use of marijuana. Should this become law, adults would be able to legally possess and share with other adults up to 30 grams of legal dried cannabis and can even grow up to four cannabis plants in each residence for personal use from licensed seeds.

Why legal consumers of marijuana may be barred from entering the U.S.

Just as our Canadian government has rules against allowing criminals into Canada, under the American Immigration and Nationality Act (INA), the United States has a similar rule.

Specifically, the INA states that a person attempting to enter the country is inadmissible if that individual has violated “any law or regulation of a State, the U.S., or a foreign country relating to a controlled substance.”

Under the INA, there are three categories of criminal inadmissibility that could be triggered by the legalization of marijuana:

  1. Firstly, marijuana is a controlled substance under the U.S. Controlled Substances Act and simple possession is a violation of that Act.
  2. Second, any individual involved in “illicit trafficking” is also subject to criminal inadmissibility to the United States.
  3. Lastly, drug addiction or dependency may also trigger a separate health-related ground of inadmissibility.

Speaking about this issue, Craig Peterson, a U.S. immigration expert and attorney practicing in Minneapolis at Ostrom & Peterson LLC, said that while many states have passed legislation legalizing the use of marijuana to various extents, it still remains a controlled substance in federal law.

For U.S. immigration purposes, an actual conviction for a crime related to drug use in Canada is not required for a Canadian to be found inadmissible to the U.S.

Where a Canadian admits to the essential elements of a U.S. crime, this will be considered a “conviction” for U.S. immigration purposes even if that conduct is legal in Canada.

In addition, it is arguably the case that medical users who grow marijuana for one other person and then transfer up to 150 grams of marijuana to that other user could be engaging in trafficking as defined in the INA. That ground of inadmissibility can be triggered by a mere “reason to believe” rather than an admission of the elements of the crime. According to Mr. Peterson:

“For now, marijuana possession, use or distribution remains at odds with U.S. immigration law. Anyone planning to travel to the United States must bear in mind that legal use of marijuana in other countries, indeed even in those states which have legalized it, may not shield one from a finding of inadmissibility.”

Is there a way around U.S. law?

Similarly to Canada’s legal regime, the INA does provide for methods to overcome criminal inadmissibility issues in certain limited circumstances. However, there is no simple and clear method to overcoming criminal inadmissibility as a result of marijuana possession.

While the INA provides for the possibility of obtaining a “waiver” which would allow a person who is otherwise inadmissible the ability to enter the country, the waiver for possession of marijuana only exists if it relates to a single offence of simple possession of 30 grams or less. Thus, anyone complying with Canada’s medical marijuana regime who has had possession of up to 150 grams of marijuana at any one time would not be eligible to apply for this waiver. Similarly, anyone who must truthfully respond that they have committed the essential elements of simple possession on more than one occasion is also ineligible for the waiver.

With respect to the possibility that certain individuals, particularly those designated as entitled to grow up to 150 grams of marijuana for another person’s use, there could be “reason to believe” that that home grower is involved in trafficking. Currently, there is no waiver possible for anyone who a border official has reason to believe has committed the crime of trafficking.

As a result of the very limited range of possibilities to overcome a finding of criminal inadmissibility, employers are well advised to be proactive in informing employees who need to cross the border of what can occur should they consume marijuana.

How can the legal consumption of marijuana affect employers?

Industries that typically require employees to travel across the border might include motor carriers, manufacturers engaging in after sales service and business travelers such as consultants. In addition, companies engaging in transfers between their Canadian and American affiliates might be among those more affected by the potential for a finding of criminal inadmissibility.

Consider the following scenario applicable to a motor carrier company. The company has a valued driver who is diagnosed with cancer and must go on medical leave to obtain treatment. During the course of the illness the driver is prescribed and consumes marijuana to assist with the symptoms associated with chemotherapy. He possesses the legal limit of 150 grams during each 30-day period of his leave. Fortunately, the driver recovers and is no longer prescribed marijuana and no longer consumes the drug. The driver now passes all drug tests.

Based on the powers listed in the INA, it is entirely conceivable that when the driver truthfully acknowledges his prior use when asked, even though the driver wasn’t violating the law in Canada at the time, the border officer may properly determine that the driver has admitted to a violation of a controlled substances law of the United States.

Commercial carriers whose drivers travel on routes to the United States are subject to drug and alcohol testing in conformity with the U.S. Department of Transportation (“U.S. DOT”). Carriers are no doubt aware that the U.S. DOT has issued statements to confirm that, while certain states have made recreational use of the drug legal and medical marijuana use is on the rise, these facts do not negate the U.S. DOT’s regulations.

Rather, in no uncertain terms, the Office of Drug and Alcohol Policy and Compliance states that medical examiners will not excuse a failed drug test simply because the driver consumed drugs as a result of legal recreational use or a medical prescription.

An employer’s ability to accommodate employees who use medical marijuana may also be affected.

Human Rights legislation in Canada imposes a duty on all employers to accommodate employees to the point of undue hardship. However, where a key component of an employee’s position requires cross border travel, an employer would be well advised to carefully consider whether the point of undue hardship has been reached if the employee may not be entitled to enter the United States as a result of possessing marijuana or sharing marijuana, even if doing so was lawful in Canada.

Policy Options

Accordingly, employers whose businesses include cross border travel should clarify their employment policies, so that employees understand that the change in Canada’s legal regime to permit the use of marijuana may impact employees’ ability to perform the duties of their jobs.

Employers should consider:

  1. Drafting clear employment policies that addresses requirements around drug use for employees who must cross the border;
  2. Including contractual provisions in employment contracts concerning termination where an employee is found inadmissible to the United States.
  3. Conducting training for all employees that may be required to travel to the United States with respect to the consequences of drug possession and use.